As an employer, you might encounter a situation where you need to address an employee’s alleged misconduct. Investigating these matters requires careful attention and diligence, and for charities, this process can often carry an additional layer of responsibility.
Whether you’re dealing with claims of theft, fraud, bullying or harassment, it’s essential that you avoid knee-jerk responses and conduct a thorough investigation that allows you to consider the matter fully before deciding whether disciplinary action is necessary.
However, a poorly conducted investigation can lead to some very costly consequences. With this in mind, we recommend the following process.
1. Check your disciplinary policy
Employers must check their disciplinary policy prior to enacting any investigation as it may contain procedural requirements that need to be observed during the investigation stage.
2. Appoint an investigator
Employers must decide who should carry out the investigation. Generally, it will be the line manager or someone from HR. It’s considered best practice that one person conducts the investigation, another conducts any subsequent disciplinary, and then someone not involved in the process to date who can overturn the original decision conducts the appeal hearing.
In very small organisations, a single individual could conduct the investigation and the disciplinary hearing, provided they are not implicated. If you’re unsure, WorkNest’s Employment Law Advisers can help you decide who is best placed to conduct the investigation.
Employers may also be able to source external HR specialists who can undertake these meetings.
If possible, the investigating officer should have experience in carrying out these types of investigations and be available for the entire duration. Again, if this isn’t possible, an Employment Law Adviser from WorkNest can offer guidance.
3. Understand the allegations
The investigator will need to know what issues need to be explored. They could be given an insight into what areas to investigate; however, they have the authority to pursue whatever evidence they think is appropriate.
In cases of serious allegations of misconduct, the employer may need to inform external agencies, such as the Health and Safety Executive or the police, but unless absolutely critical or required, the internal investigation should be done first, if possible, to avoid long periods of suspension with pay. Advice should be taken as soon as possible.
4. Consider suspension
Consider whether the employee should be suspended on full pay whilst the investigation is being completed. Suspension is usually only warranted in cases that pertain to potential gross misconduct. This action should only be taken in certain cases, for example if there is a risk that the employee could tamper with evidence or continue to pose a risk to your business.
It is critical to make sure that the employee is aware that this is a temporary measure and not a disciplinary sanction.
Remember, the length of an investigation will depend on the complexity of the issues that need to be explored, but any suspension should be as brief as possible and should be kept under review.
5. Conduct the investigation meetings
The investigating officer may need to hold investigation meetings with other employees that they believe have useful information about the allegations, as well as with the person accused of misconduct.
Investigation meetings are not easy. It will be particularly difficult for the person who raised the complaint or the person who is under investigation. Some witnesses to the alleged misconduct may be reluctant to speak due to fear of retaliation. Investigating officers must therefore be skilled in putting people at ease and extracting all the necessary information.
Employees do not have a statutory legal right to be accompanied in an investigation meeting. However, some employers may include a provision in their contracts of employment allowing employees to be accompanied by, for example, a work colleague or Trade Union representative.
The investigating officer should ask clear and relevant questions to gather all necessary information, while ensuring the interviewee feels comfortable answering. They should listen attentively and remain open to all responses, focusing on understanding the facts and ensuring a fair investigation process.
6. Gather evidence
When dealing with potential misconduct, it can be difficult to determine what really happened, as often the alleged perpetrator and victim will be the only people present during the incident. However, investigating officers must persevere to establish the facts and collect witness statements, or a signed copy of the notes from an investigation meeting, written documents (e.g. attendance sheets) and physical evidence (e.g. CCTV).
Investigators can seek to carry out a search of an employee’s desk, locker or belongings. However, there must be a legitimate reason for doing so. You should ensure that you have a contractual right to search personal belongings; if you don’t, the employee may be able to legitimately refuse to participate. Always seek advice prior to carrying out a search.
It’s important that the investigation considers evidence which both supports and challenges the allegations. Each piece of evidence must be analysed, exploring what it shows, whether there are any doubts about its reliability, how it fits in with other evidence, and whether further evidence is required.
7. Deliver the report
An investigating officer might need to draft a report of their findings, but this isn’t always necessary. The investigating officer should suggest what the next steps should be, for example disciplinary action, mediation, counselling or no further action. The officer should not recommend a particular disciplinary sanction is issued to the employee; that decision should only be made at the disciplinary hearing stage.
If you’re unsure, it’s safest to speak with an Employment Law Adviser for guidance on the most appropriate outcome.
Need support?
For practical advice on investigating misconduct allegations in your charity, including whether disciplinary action should follow, contact WorkNest today for professional support.
Their Employment Law and HR specialists can clarify the best course of action to help you avoid costly missteps and can even conduct investigations on your behalf, if necessary, to take the pressure off.
To discuss your charity’s specific situation and explore possible support options, call their team on 0345 226 8393 or email enquiries@worknest.com quoting ACEVO.
