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Serious misconduct: Top tips for an effective conduct investigation

Read our top tips for an effective conduct investigation concerning serious misconduct.

One of the most difficult aspects of handling a serious conduct case is determining what level of investigation needs to be carried out and what information needs to be shared with the employee under investigation.

Do you need to speak to ‘every man and his dog’? If a colleague was on holiday when the incident took place do you still need to interview them and share their evidence?

In an interesting recent decision, (Hargreaves v Governing Body of Manchester Grammar School) the Employment Appeal Tribunal held that an employer’s failure to disclose witness evidence to an employee facing a very serious conduct charge was not fatal to the fairness of the subsequent dismissal.

The claimant, a teacher, was alleged to have assaulted a pupil by grabbing him and pushing him against the wall. The investigator had spoken with a number of potential witnesses. Some of these individuals said they had not seen the incident and they would not have had a direct view of the area in question. As it was deemed this did not help with determining the case, this evidence was not disclosed to the employee or the disciplinary panel deciding the case.

An Employment Tribunal and subsequently the Employment Appeal Tribunal agreed that this approach did not deem the dismissal unfair, even though the allegation in question was of a potentially career-changing nature.

In reaching this conclusion it was highlighted that the employer had given careful consideration to using this information before proceeding and had not merely dismissed it out of hand.

Of course, every misconduct investigation is different and what is appropriate will be fact sensitive. Different facts may well have resulted in a different outcome.

So, to ensure that your conduct investigation is best placed to be fair and stand up to Employment Tribunal scrutiny; here are a few top tips to consider when undertaking an investigation:

Keep an open mind

One of the criticisms we hear most often from Employment Judges is that an investigator has had a “closed mind”. For example, it is often the case that the relevance or helpfulness of a particular line of investigation has not been clear from the outset so it has been discounted.

There is a balance to be struck. While it might be the most prudent approach to follow every suggested line of investigation this is not always feasible or reasonable. An Employment Tribunal should appreciate that you will not have unlimited time and resources available.

However, it is key to understand where each line of investigation might lead before it is discounted. When a line of investigation is suggested by the employee facing the charges, take a moment to ask why they are suggesting this line of investigation and what it might mean to the case as a whole.

Making an informed decision about what to do next, and recording this in your deliberations, demonstrates an open mind even if that line of investigation is not pursued.

Employment Tribunals are keen on “open books”

Unlike the court rooms you might see in television dramas (particularly those originating from across the Atlantic) Employment Tribunals are not keen on late surprises or one side having information the other does not. Whilst this may not make for good television it does make for an open and transparent approach where everybody involved knows where they stand and can put forward their arguments accordingly.

The same should be true of your conduct investigations. An employee should have the same level of information available to them as the decision maker, before any decision is reached. This allows them to provide any relevant comment before the decision maker then draws their own conclusions.

What might seem irrelevant to the investigator can be important to the case the employee wishes to put forward.

The level of investigation should reflect the seriousness of the allegations

There is a ‘sliding scale’ of reasonableness in terms of what an Employment Tribunal will expect from an employer’s investigation.

If the employee faces a potential first-line warning the investigation can reasonably be much less thorough than when an employee faces a potential dismissal.

Furthermore, when there are potentially career-changing consequences from the case (in the case of teachers or medical professionals, for example) there really should be ‘no stone left unturned’.

You should give some early thought to the potential penalties likely to be considered when determining how thorough the investigation needs to be and adjust your approach accordingly.

Be prepared for arguments about representation

Where an allegation is potentially career-changing and will prevent an individual from pursuing their profession, an employee may potentially ask to be legally represented at their disciplinary hearing (rather than being represented/accompanied as usual by a colleague or Trade Union representative).

Check the employee’s contract to see whether there is any explicit right to be legally represented. For example, medical professionals may have a contractual right to be represented, even at internal disciplinary hearings, by their professional defence body.

In the absence of a contractual right you are not obliged to agree to legal representation. However, some professional claimants facing serious allegations have argued that such refusal is an infringement of their human rights. This argument has not yet been successful in the UK Employment Tribunals, but it is important to seek advice straight away if this issue is raised.

Of course, having the assistance of an employment lawyer can help you strike the right balance throughout your investigation and we are always on hand to provide guidance.

John McArdle, is a Chartered Legal Executive in the Employment, Pensions and Immigration team and is based in Liverpool. If you have any questions, please do not hesitate to contact John or speak to your usual Weightmans advisor.

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