Date: 4 October 2007

Source: People Management

Conducting an internal investigation into alleged employee misconduct requires skill and tact. Those carrying it out must balance thoroughness with fair treatment towards those under investigation. This isn’t easy but can be achieved with a little forethought. 

Before holding a disciplinary hearing, it is crucial that employers have sound evidence on which to base their decisions. Failing to conduct a full investigation, in all but the most exceptional of circumstances, may render a dismissal unfair and result in costly consequences in terms of tribunal awards, staff morale and stakeholder confidence. 

1 How serious is it? 

An investigation must establish the seriousness of the alleged misconduct and be proportionate to it. So, your response may range from a brief discussion with the employee to establish the facts, to a full-scale investigation involving other agencies such as the police. The objective should be to provide sound evidence for any subsequent disciplinary action. Investigators should ask themselves what they can reasonably expect to achieve given the time and resources available. Any internal investigation should follow the ‘Lift’ principle – it should be logical, impartial, fair and time-bound. 

2 Separation of powers 


Those conducting the investigation should not also hear the disciplinary complaint. These two functions should be kept separate in the interests of natural justice. Tribunals and the Acas code of practice on disciplinary and grievance procedures acknowledge this will not always be possible, especially for small businesses (www.acas.org.uk). Even so, if funds permit, employers should consider commissioning an independent investigator for more serious cases. For larger organisations, it is important that HR and the investigating manager work together. Protocols need to be agreed and good communications maintained throughout the investigation.

3 Keep an open mind 

Do not assume guilt or innocence. Decide whether the employee should be suspended on full pay pending the investigation. Make sure this is described as a precautionary measure – it should be made clear it is not a disciplinary sanction. Such action should only be considered in more serious cases where the employee’s continued presence in the workplace might have a disruptive effect or enable employees to undermine the case against them.

4 Establish the evidence 

Identify the types of evidence you need to gather. Don’t rely merely on witness statements. Think about gathering files, documents, CCTV footage or computer records, if available. Policy documents and training records can also be used. If any evidence is likely to perish or be removed, gather it as a priority. Decide who you need to interview and do it as soon as possible before memories fade. You are entitled to interview the employee against whom the allegation has been made, but it should be made clear it is an exploratory interview and not a disciplinary hearing. Identify what you need to establish from each interviewee and prepare accordingly. It is not advisable to have a pre-prepared list of questions as you may need to explore particular responses in more detail during the interview. It is better to prepare a list of topics and decide on the order in which you wish to deal with them.

5 Interviewing witnesses 


Make full notes when interviewing witnesses. At the end they should be invited to read through the notes and sign them. Draft statements should be taken back to the witness for signature and the notes on which the statement was based retained until the conclusion of any disciplinary hearing or subsequent appeal. Don’t put words into witnesses’ mouths or suggest answers. Your questions should encourage them to recall their version of events in their own words.

6 Manage witness expectations


Witnesses should be informed at the end of the interview that if the case results in a disciplinary hearing, they may be required to give evidence. They need to be aware that anonymity cannot be guaranteed unless there is a genuine fear of reprisal. 

7 Is it criminal? 

Some of the more serious allegations of misconduct may potentially be criminal offences. If you suspect this is the case, you may need to inform other agencies – for example, the Health and Safety Executive or the police. The evidence you gather for your internal investigation may also be required for a parallel criminal investigation. If this is the case, continuity of evidence is important. For your evidence to be admissible in a criminal prosecution, you need to be able to demonstrate its physical location at any point in time. Seek legal advice at an early stage on how continuity can best be achieved.

8 Handle confessions with care 

If an employee admits to a criminal offence during the course of an internal investigation, it is advisable to make a note of it in case it needs to be used as evidence in any subsequent criminal proceedings. The note should be timed, dated and signed by the person taking it and the employee should read and sign it. Where the employee disagrees with the record, note the details and ask them to read and sign them to the effect that they accurately reflect the disagreement. Any refusal to sign should also be recorded. The investigation should then be terminated with a view to involving the police or any other appropriate investigatory body. Failure to do this is likely to make such unsolicited comments inadmissible in a criminal court. 

9 When it’s over, it’s over 

Once you feel you have sufficient evidence on which to base a decision, finish the investigation. The standard of proof for most internal investigations and any subsequent disciplinary hearing will need only to be “on the balance of probabilities”. You do not have to prove your case “beyond reasonable doubt” for it to stand up in a tribunal. 

Key Points 

• Those conducting the investigation should not be involved in the decision-making at any subsequent disciplinary hearing. • For more serious cases, consider suspending the employee on full pay.• Approach investigations with an open mind and decide in advance what evidence you need.• If you decide to interview the employee against whom the allegation has been made, make it clear that it is not a disciplinary hearing.• The civil standard of proof (“on the balance of probabilities”) is an acceptable standard to work to.