hello@kilgannonlaw.co.uk

Our team is ready to answer any questions

0800 915 7777

Book your consultation today

Carrying out a disciplinary investigation

As an employer, you may need to carry out a disciplinary investigation. In these circumstances it is essential to handle the matter in a way that is both transparent and fair.

Acas Code of Practice

This should be an employer’s first port of call. The complete code of practice is available to download online.

Any tribunal which subsequently decides to investigate the matter (because the employee brought proceedings) will take account of whether (and to what extent) the employer followed this code of practice.

In some cases, the tribunal may even consider adjusting any compensation award by up to 25% for failure to comply with the code.

Acas has also published a guidebook on discipline and grievances at work, which provides further help.


The disciplinary procedure

Employers should have a written procedure in place that can be followed in cases of misconduct. The procedure should be clear and easy to understand. It’s a good idea to ensure employees are familiar with it.

The written document should set out the procedure for any investigation of the facts and any subsequent disciplinary hearings.

Suspension pending a disciplinary investigation

When allegations of serious misconduct are made, careful consideration needs to be given as to whether an employee should be suspended pending the investigation.

Factors to consider include:

  • whether a failure to suspend the employee will affect whether a fair investigation can be carried out;
  • whether it causes a risk to the business.

If it is considered essential to suspend the employee, the suspension should be as brief as possible, and be kept under review. Usually, it should also be paid.

It should be made clear to the employee that the suspension is not part of the disciplinary action. An unfair suspension could entitle an employee to bring a claim against the employer.

There are many factors to take into account when considering a suspension, and getting it wrong can be costly, so good advice should be taken.

Timing of the employer’s response

When an issue of misconduct is raised, it needs to be dealt with promptly by the employer – from appointing the people who will investigate to making the final decision on the outcome.

Establishing the facts from a disciplinary investigation

Where appropriate, employers should start by holding an investigatory meeting which attempts to establish the facts.

A separate investigation stage won’t always be necessary and will depend on the issues involved. For example, allegations of harassment, bullying or theft in the workplace are likely to require an investigation. Minor misconduct is less likely to need this treatment.

Who should investigate?

Where possible, different people should carry out the investigation and disciplinary hearing. How realistic this is may depend on the size of the business and the resources available.

The investigator should be sufficiently impartial and uninvolved. While a line manager may seem an obvious choice, their relationship to the case or the employee may require them to be excluded, depending on the circumstances.

Conduct of the investigation

There is no statutory right for an employee to be accompanied at a formal investigatory meeting. However, employers should consider any such request and allow it if it is reasonable to do so.

The employee concerned should also be told about the nature of the investigation and given time to prepare, as well as being allowed to give their version of events.

Employers cannot force witnesses to give evidence. However, they should reassure and encourage them to do so.

While witnesses may want to be anonymous, employers should be careful about agreeing to this. It can make it hard for the ‘accused’ to fairly defend any claims if they don’t know who is making them.

Bear in mind that the investigatory hearing is not the same as the disciplinary hearing. The purpose of the investigation is simply to establish the facts. What action should be taken in respect of those facts should be dealt with at any subsequent disciplinary hearing.


The outcome of a disciplinary investigation

Once the evidence has been heard, those in charge of the investigation will need to decide what happened. In doing so, they must consider whether the allegations are more likely to have occurred than not (i.e. based on the ‘balance of probabilities’).

Evaluating the evidence is not always easy. Factors to consider may include:

  • the credibility of any witnesses,
  • any discrepancies in the evidence,
  • any explanations given.

The disciplinary hearing

If it is decided at the investigation stage that the employee has been guilty of misconduct, the next stage is to hold a disciplinary hearing.

The employee should be notified of the decision in writing and given enough information about the alleged misconduct and possible consequences.

The disciplinary hearing should be dealt with as quickly as is reasonable.


Getting professional help with disciplinary issues

Conducting a disciplinary investigation can be daunting. It must follow a fair and transparent procedure.

If you’d like to discuss any of the matters raised in this post, or if you need help with conducting a disciplinary investigation, our experienced team of employment law solicitors can assist you and your organisation. Get in touch today for an initial consultation.


a woman is writing on a tablet while using a laptop .
By Matthew Kilgannon 20 Mar, 2024
Every April, the Government reviews and makes changes to employment laws, including a review of financial rates. Below we set out a summary of the proposed changes coming into effect in April and beyond.
a man in a wheelchair is sitting at a desk with a woman standing next to him .
By Marianne Wright 20 Feb, 2024
In the modern workplace, fostering a culture of inclusivity and ensuring equal treatment for all employees is a crucial aspect of employment law. Discrimination based on disabilities (which can include mental health conditions) is strictly prohibited in the United Kingdom. This article explores the legal framework in UK employment law that safeguards employees against discrimination and highlights the consequences faced by employers who fail to uphold these important principles.
a man is sitting at a desk in a dark room using a laptop computer. GDPR
By Emily Kidd 06 Feb, 2024
In an era of heightened data protection awareness and stringent regulations like the General Data Protection Regulation (GDPR), employees play a critical role in safeguarding personal data. This article explores the legal consequences that employees may face in the United Kingdom when implicated in data protection breaches at the workplace.
person holding up a mental health book and in a discussion
By Yeing-Lang Chong 22 Jan, 2024
In recognition of the importance of employee well-being, employers in the UK are increasingly implementing well-being initiatives to support the mental health and overall well-being of their workforce. These initiatives, which can include employee assistance programs (EAPs) and wellness programs, aim to provide support, resources, and interventions that enhance employee well-being. This article explores the legal framework surrounding well-being initiatives in UK employment law and highlights the benefits and considerations for employers when implementing such programs.
Female employee getting harassed at work by a colleague
By Marianne Wright 19 Jan, 2024
Creating a safe and respectful work environment is a fundamental aspect of UK employment law. This article explores the legal obligations placed on employers to address workplace harassment, highlighting the measures they should take to promote a culture of respect and protect their employees' mental health.
By Emily Kidd 04 Dec, 2023
In recent years, there has been increasing recognition of the importance of mental health in the workplace. Employment law acknowledges the sensitive nature of mental health disclosures and places obligations on employers to handle such disclosures with care, confidentiality, and without discrimination. This article explores the legal framework surrounding mental health disclosures in the workplace, emphasising the responsibilities employers have in safeguarding employee privacy and ensuring a supportive and inclusive environment.
By Emily Kidd 04 Dec, 2023
The General Data Protection Regulation (GDPR) revolutionised the way organisations handle personal data, and for Human Resources (HR) departments in the United Kingdom, compliance is paramount. This article provides a comprehensive exploration of best practices for HR to safeguard employee data and ensure GDPR compliance in the workplace.
Whistleblowing, Sexual Harassment and Gagging Clauses image
By Louise Maynard 09 Nov, 2023
On 23 October 2024, the new, positive duty to prevent sexual harassment in the workplace comes into force. The extent to which a non-disclosure agreement can prevent a worker disclosing sexual harassment will be under the limelight. In the employment context, the most common area for non-disclosure agreements is settlement agreements, under which an employee agrees to settle all claims in return for a compensation payment often where the employer has been unable to resolve a grievance including unlawful discrimination or sexual harassment.
Positive duty to prevent sexual harassment in the workplace
By Louise Maynard 03 Nov, 2023
On 26 October 2023, Parliament passed new legislation to amend the Equality Act 2010 to place a duty on employers to take reasonable steps to prevent sexual harassment of employees and workers during the course of their employment. The new duty comes into force on 26 October 2024.
What is a Deposit order in the Employment Tribunal?
By Louise Maynard 28 Aug, 2023
Employment tribunals are often reluctant to strike out cases at an early stage unless there is a compelling reason to do so. An alternative option for the Tribunal is to make a deposit order.
More Posts
Share by: