Investigation

How to Effectively Conduct Investigations and Disciplinary Hearings in a Town Council Presented by

Rachel Fraser Employment Law Adviser

(Additional Slides)

Woodhouse, Home of Ellis Whittam

Investigation : The Role of the Investigator What is the Investigator’s role in the process - considerations • • • • •

What do the Council’s procedures say? What does ACAS say? Is the investigator simply fact gathering? Is the investigator conclusions for someone else to make a decision? Is the investigator making a decision?

ACAS Code of Practice ACAS Code of Practice on Disciplinary says: Establish the facts of each case • It is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. • In some cases this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing. • In others, the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing. • In misconduct cases, where practicable, different people should carry out the investigation and disciplinary hearing. • If there is an investigatory meeting this should not by itself result in any disciplinary action.

Council’s Own Procedures • What does the disciplinary policy say? • What about the National Conditions on Pay and Service? • What do the Standing Orders say or is there a protocol or procedure on Member/Officer Relations? • Are there any contractual issues?

National Conditions on Pay and Service Disciplinary Procedures The employing authority should ensure that all employees are aware of the disciplinary rules and procedures that apply. All employees should also be aware to whom they can apply if they are dissatisfied with any disciplinary decision. These procedures should accord with legal requirements and with the ACAS Code of Practice and guidance.

Considerations • Why are the Council investigating? • Who is investigating? • What is being investigated?

• When is the investigation taking place? • Where is this investigation going to take place? • Under what procedure is an investigation taking place? • Are there any ‘conflicting rights / obligations’? e.g. Is the investigator a witness in the proceedings? • Will witness statements be required?

Different Types of Investigation • Formal • Informal on notice • Ambush

Formal Investigation Formal • Check procedure • Is notice to be given?

• Is right to be accompanied to be given? • Does Article 6 apply? • What is Article 6?

Article 6 – Human Rights Article 6 of the European Convention on Human Rights (ECHR) provides that, in determining civil rights or obligations or criminal charges, everyone is entitled to a

"fair and public hearing by an independent and impartial tribunal established by law" (Article 6(1), ECHR).

Informal on Notice Investigation Informal on Notice • Check procedure • Why would this be used? Does the employee work

away from the main Council buildings and so need them to attend the offices at a specific time • Process the same as Formal

Ambush Investigation • Check procedure • Why would this be used? When you want to ask the employee questions without the benefit of time to prepare responses • Process: • Employee is invited in without notice

• Ask them the investigation questions

Suspension? • Questions: • What does the procedure say? • Can they be suspended? • Should they be suspended? • Who decides? • What does ACAS say? • Crawford and another v Suffolk Mental Health Partnership NHS Trust – the suspension should not be a knee-jerk reaction and should be ‘considered’

ACAS Code of Practice • In cases where a period of suspension with pay is considered necessary, this period should be as brief as possible, should be kept under review and it should be made clear that this suspension is not considered a disciplinary action.

Going too far • How can an investigation go too far? – Making assumptions – Making premature decisions – Chastising and telling off

Getting it Wrong! • Breach of contract • Unlawful deduction of wages • Unfair dismissal • Constructive dismissal • Discrimination claim?

Confidentiality • Explain to the employee/witnesses that they should keep the matter confidential

• Witness anonymity? • Has there been any breaches of this during suspension?

Sickness Absence during Process • Questions: • Is the sickness absence related to the investigation e.g. Stress? • Do you need to get a medical report? • Can you deal with this in writing or at a neutral location? • Can you continue in their absence? • Discrimination claim?

Grievance during the Process •

Questions:

• What does ACAS say? • Is the grievance related to the disciplinary process? e.g. Mitigation? • Is the grievance related to those conducting the disciplinary process? e.g. Bullying and harassment. • Do you need to pause the disciplinary process to hear the grievance?

• Can you deal with grievance at the same time as the disciplinary?

ACAS Code of Practice Overlapping grievance and disciplinary cases: • Where an employee raises a grievance during a disciplinary process the disciplinary process may be temporarily suspended in order to deal with the grievance. Where the grievance and disciplinary cases are related it may be appropriate to deal with both issues concurrently.

Effective Record Keeping • Have a minute taker present at the investigation/ disciplinary hearings • Allow the employee to agree the contents of the minutes • Ask the employee and officer to sign a copy of the final agreed minutes • No need to have a ‘word for word’ account – just an accurate reflection of the meeting • Is a recording really necessary?

Disciplinary Procedure Four key areas 1. Disciplinary Issues 2. Invitation 3. Disciplinary Hearing (Decision making process) 4. Appeal

Key Issues • Is the employee aware of the rule or policy they have broken? • Where is it stated? • Have there being any changes?

• How can it be proven that the employee was aware?

Disciplinary Issues • Broken / flouted rules • Misbehaviour • Persistent minor breaches • Gross misconduct

Inviting to Disciplinary Hearing • Disciplining Officer or Panel • Not previously involved

• In writing • • • • • •

Right to be accompanied Sufficient notice Who disciplining officer is Enclose all available evidence State allegations clearly State potential outcome in invite

Conducting the Hearing • Objective : to establish the truth • Introduction

• Explain structure of the meeting • Roles • State clearly nature of complaint • Ensure matches allegations in invite letter • Obtain employees’ account and question it • Adjourn for decision

What if it does not go as expected? • Do not get involved in arguments • Stop meeting if employee provides adequate explanation or there is no real evidence

• Adjourn briefly if employee becomes upset, agitated or angry to give them to time to regain their composure • Non attendance – consider length of service and if you need to give them a second opportunity to attend

Ending the Meeting • Summarise the main points • Summarise employee’s case • Clarify any areas that need to be checked

• Check informant’s motives • Consider possible explanations and investigate • Further meeting needed? • Adjourn before making a decision

Verdict • What allegations uphold and why? • If uphold allegation, what disciplinary sanction and why?

Decision Making • EW is there for advice and so it is always worth talking this through with your adviser • Procedural consistency needed:

• sufficient investigation • following procedure • Within the range of reasonable responses – what does that mean? • Consistency of disciplinary sanctions only required where virtually identical circumstances

Decision • No case to answer • Letter of concern • Stage one warning

• Final warning • Dismissal • Other sanction • Disciplinary transfer • Demotion / loss of seniority (must be allowed for in contract)

Next Steps • Outcome of hearing and disciplinary action should be provided in writing • The reasons for the decision should be stated • ACAS Code of Practice – state change in behaviour required • Right of appeal together with time limits and procedure should be confirmed • If final written warning, the employee should be warned that further misconduct within a set time period could result in dismissal

Dismissal With Notice • Should be final step • Normally taken after previous warnings are ignored • If payment in lieu, termination is immediate

• Check complies with statutory / contractual notice periods

Dismissal Without Notice ‘Summary dismissal’ means dismissal without prior warning or notice • Only available if misconduct is gross! • An employee must know what may constitute gross misconduct • Gross misconduct is ‘Misconduct serious enough to destroy the employment contract between the employer and the employee and make any further working relationship and trust impossible.’

Appeal Invitation • Right to be accompanied • Ensure relevant records are available • Read evidence beforehand • Unbiased manager or appointed Council Panel • What does ACAS say?

Appeal Meeting At the meeting • Employee to state why they are appealing • Appeal officer/ Panel to consider carefully any new evidence • Employee allowed to comment on it • Further investigation?

• Further meeting? • Adjourn for decision

Appeal Outcome • Make a decision • Revoke earlier decision? • Procedural Issues?

• Lesser sanction?

• Confirm decision in writing • No further right of appeal (unless procedure allows for this!)