When workplace disputes arise, many managers shoot first and ask questions later (HR are always having to deal with the metaphorical ‘bodies’.) Needless to say, this is likely to seriously flaw the disciplinary process and put the final outcome in doubt. It is vitally important to collect and consider all the facts before taking any action.
Kate Russell goes back to basics and shows you how to cope with disputes and investigations.
The fundamental purpose of a discipline or grievance investigation is to collect the facts. It’s no more difficult than that. But while a really rigorous investigation is essential to a well conducted process, many managers simply skate over the surface and either do not collect the relevant data or fail to take a sufficiently robust approach to data collection.
A good investigation avoids that danger and enables you to gather the facts. It also ensures that you comply with your company’s policies and procedures and employment law; it prompts you to undertake a risk assessment and take precautions if necessary and it helps you to ascertain whether there is a case to answer and, therefore, whether any disciplinary action should follow. If action of any kind is to be taken it must be fair and reasonable, and must take into account all of the circumstances, including any mitigation, offered. The purpose of your investigation is to ascertain what those circumstances might have entailed.
Few people would dispute that managing staff is the most demanding of management tasks and tackling staff misconduct is the hardest of all.
You have to be willing to think the unthinkable about people, you have to be prepared to be unpopular and accept that you will be damned if you do tackle misconduct and damned if you don’t; ignoring it and hoping it will go away, or covering it up, are actions guaranteed to store up trouble for the future. So often, a minor matter that could be readily addressed and resolved promptly, with the minimum amount of pain and disruption, is allowed to quietly fester. If the issue isn’t addressed, it can eventually grow into a problem of monster proportions, by which time it has become more complicated, the impact has become greater and the possible outcomes are much more serious.
Problems with employees come in all shapes and sizes, from small matters such as timekeeping through to complaints of harassment, money or property going astray, poor work performance and accidents and injuries. When problems such as these occur, employers must investigate and determine, as far as is reasonably possible, what really happened. There is no magic formula for conducting workplace investigations. They vary based on the issues and the people involved.
Some investigations will be completed quickly with no need to interview witnesses.
The most frequent problems are as follows:
- Timing is everything. The investigation has to be done as soon as the organisation becomes aware of an issue. Not only is it more difficult if you leave it longer, the argument can also be put that by leaving it, the there’s a clear indication that the matter isn’t serious.
- Get professional help if needed. On occasions I have had to use private investigators (especially where there are concerns that an employee is working elsewhere) or digital forensic experts to examine a computer to establish the history. If you are considering this type of expert help, remember that information must be gathered in a way that is lawful and doesn’t breach human rights.
- Impartial investigation. In a conduct matter, employment tribunals expect the investigation to be done by one person, the discipline hearing by another and the appeal, if any, by yet another. This is to ensure the fairest possible process. If the investigating officer also chairs the discipline meeting he will be both ‘judge and jury’.
- Preserve the evidence. Where evidence may be destroyed or may deteriorate, take steps to quarantine or preserve it.
- Get the full picture. Even where an employee throws up his hands and confesses, make sure you complete the investigation to ensure that you have gathered all the relevant facts, including mitigating circumstances.
Avoid these problems and you’ll find that your investigations go more smoothly. Happy sleuthing!
Kate Russell is the author of How to Get Top Marks in … Tackling workplace investigations
Tackling workplace investigations is a subject covered in Law on the Move – a practical hands-on learning aid covering all the key aspects of making HR work easily: www.lawonthemove.co.uk
3 Responses
Your comments have caused a stir!
Tried the first part of your advice
Tried the first part of your advice. He walked into the office saw I was accompanied accused me of not informing me that it was a disciplinary interview and refused to discuss the matter without ‘him’ being accompanied.
That is the reason why I referred the discussion to a Formal meeting, I felt I had no choice, I did not feel comfortable about speaking to him on his own and he did not want to speak to me without being accompanied.
The problem now is, I am being told is I should not have referred the matter to a formal meeting because an investigation had not taken place. I was advised that me gathering the facts could constitute an investigation but that I would not be able to conduct the disciplinary interview.
My HR advisor is very experienced and CIPD qualified (She reminded me!!) stated that if I issued a warning I would lose on appeal because no investigation took place and if it did I should not have conducted the interview.
Your advice is far more practical and certainly common sense and my Executive would like to go down your route but would like to know the legal point –
When dealing with non gross-misconduct performance or behaviour issues; is a manager allowed to gather factual information and present those facts at a disciplinary interview?
Response from Kate Russell
Dear Ann
You have my sympathy. This is an uncomfortable situation, but technically fairly straightforward.
As this is relatively minor, I would suggest you start with an informal but structured conversation. I’m not sure if you have really done that yet. There is no need to write in advance, no right to be accompanied & no warning. It is guidance & support. Given that he is hostile with you, it might be best to have someone with you to take notes & be a witness if he alleges that you bully or harass him. If he does say that you Re bullying, ask why he thinks that. Ask how you’re treating him less favourably than you would treat any other employee who is clearly not meeting your reasonable management standards.
NB be clear about the difference in poor performance (where the employee can’t meet your requirements) & misconduct where he won’t meet your objectives. There seems to be evidence of both issues here.
Set out your concerns objectively giving recent examples. Ask him why this is happening & see what can be done to support him. What you’re trying to do is get his commitment to improve. Agree an action plan, including any training or support from you and set a timescale at which you will review his progress against the required standards. Put the date (about 8-10 weeks) in the diary there & then. Tell him that If he does not meet the standards you will escalate to the first stage of the disciplinary process. Set out an action plan, agree it, giving measurable objectives & give him a copy.
You said he’s a bit hostile. Be pleasant, but firm. Many employees go into "screamer" mode when performance or conduct is being discussed to encourage you to leave them alone. Stick to your guns. Once the employee knows he has been called to account & that you’re going to be scrutinising performance & l not back down he knows that he must shape up, ship out or will eventually be disciplined. You’d be surprised how often an employee jumps when he knows that you are serious about encouraging his improvement, & he has no intention of meeting your requirements ……. Put it this way. I have to sack very few people.
As a final point, I disagree with the advice you’ve been given. Sometimes an investigation will be complicated, take weeks & require the interviewing of witnesses. Sometimes it’s a few minutes & only requires the review & collating of a few papers. Each case turns on its own facts. All you need to establish is whether there is a case to answer on a balance of probabilities.
You should certainly have a different disciplining officer in a case of misconduct. There’s no legal requirement, but the tribunals expect it & it’s good practice. It’s not required in a case of poor performance, but I would prefer a degree of independence between investigating & disciplining decisions.
Good luck!
Kate
Can I conduct the disciplinary interview
I have an employee who constantly makes mistakes and when I try to bring this to his attention he becomes emotional, argumentative and blames others for his mistakes. I have a clear list of instances or poor performance and poor behaviour which are undefencable. Yesturday things came to a head when he blamed and upset another team member when he upset a customer.
When I tried to talk to him about it he again became hostile and emotional, I tried everything to get him to quiet down but to no avail. Because of this I had no choice but to refer any further discussion to a formal disciplinary interview.
I have been told however that I should not have refered the matter to a disciplinary interview as a formal investigation had not taken place. When I presented the underfencable facts I was told that gathering the facts does not constitute an investigation and if it did I would not be allowed to conduct the disciplinary interview anyway as I am not allowed to do both (Gather the facts and conduct the meeting).
This is not a gross-misconduct (not serious enough for dismissal) I just wish to improve this persons performance/behaviour using the disciplinary procedures.
Please could you advise me on the correct process for handling this non gross-misconduct issue? What is the legal position here?