Investigations as part of the Disciplinary process

Investigations as part of a Disciplinary Process

The key test when you are considering dismissing an employee for misconduct, was established in the case of British Home Stores Ltd v Burchell (1978).
This may be an old case but we still rely on ‘the Burchell test today when we look at a conduct dismissal to see whether it is unfair under section 94 of the Employment Rights Act 1996.

The test sets out 3 key steps:

1. The employer believed the employee to be guilty of misconduct;
2. The employer had reasonable grounds for that belief: and
3. At the time the employer held that belief, the employer had carried out a reasonable investigation.

The investigation part of any disciplinary process is very important.

We have set out 10 tips for investigation as follows:

1. Follow your disciplinary procedure.
2. If you want a separate investigation and disciplinary appoint an investigation officer to carry out an investigation into the misconduct allegations.
3. Carry out the investigation without unreasonable delay.
4. Progress the investigation in a fair and reasonable manner. The nature of the investigations will depend on the seriousness of the matter.
5. Keep an open mind and look for evidence which supports the employee’s case as well as evidence against.
6. Collate all relevant facts that will be needed to take a disciplinary decision. This will include collecting documents, speaking to witnesses and taking notes.
7. Consider whether it is appropriate to hold an investigatory meeting with the employee. This is not always necessary but may be important where suspension is being considered or if there are complicated facts to investigate.
8. There is no requirement for the employee to be accompanied at an investigation meeting, although the ACAS Code does say this is good practice. You must allow a companion to attend a disciplinary meeting.
9. In most situations the employee should be given advance warning of an investigation meeting and time to prepare.
10. If you are having multiple meetings, don’t consider disciplinary action at an investigation meeting. Leave that to the disciplinary hearing.

Investigations and Disciplinary hearings should be taken one step at a time. We can assist guide an employer through this process.

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