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IM Educate Briefing

Legal Briefing - 19 May 2017

Disciplinary investigations – our guide to avoiding common pitfalls

A member of staff has been accused of misconduct. Do you have to suspend them while you investigate and, if you do, do you have to pay them? Who should carry out the investigation and how thorough does it have to be? What is the correct standard of proof and should the investigator recommend what sanction to impose?

Our FAQs provides answers to these and other common questions that arise.

Q1: Should we suspend our employee during the investigation?

You should only suspend an employee if it is necessary to do so. This will usually only arise where serious misconduct is suspected and you believe that the employee may tamper with evidence, put pressure on witnesses or, if the allegations against the employee being investigated suggest that they may pose a risk to themselves or to others. Even in these circumstances, it may be possible to ask the employee to undertake reduced or alternative duties rather than completely suspend them from work. In the context of education, this could include redeployment so that the individual does not have direct contact with the child concerned, or providing an assistant to be present when the individual has contact with children. 

Government guidance indicates that: “Suspension should only be considered in a case where there is cause to suspect a child or other children at the school or FE college is or are at risk of significant harm, or the allegation warrants investigation by the police, or is so serious that it might be grounds for dismissal. However, a person should not be suspended automatically, or without careful thought being given to the particular circumstances of the case.”

Suspending someone is a serious step and you must have a good legal reason for taking it. It should not be an automatic “knee jerk” reaction to allegations of misconduct. You must be particularly careful before suspending senior employees without good evidence because the repercussions of them being excluded, can be serious. It is common for suspended employees to feel belittled and demoralised and it can be difficult for them to regain their authority when they return to work or avoid a slur on their reputation even where they are subsequently cleared of the charges.

To minimise the risk of reputational damage you should also consider the following if you decide to suspend an employee:

  • Who needs to know and, importantly, exactly what information can be shared;
  • How to manage speculation, leaks and gossip;
  • What if any information can be reasonably given to the wider community to reduce speculation; and
  • How to manage press interest (if it arises).

If you suspend someone without a good legal reason, it is likely to damage the relationship of trust and confidence and may entitle to the employee to resign and claim constructive unfair dismissal (provided they have at least two year’s continuous service).

Q2: Do we have to pay an employee if s/he is suspended?

Yes, unless you have a contractual right to suspend without pay (which would be unusual). During suspension an employee should also continue to receive their normal contractual benefits, such as health and life insurance, company car etc.

Q3: Do we have to follow a particular procedure before suspending an employee?

No, but you must act reasonably and if you have a policy, follow it. If you (eventually) dismiss the employee (or they resign) they may claim that their dismissal was unfair. A tribunal will consider whether a fair and reasonable investigation has taken place and the reasons why you decided to suspend the employee may be relevant to this.

You must inform the employee of their suspension and the reasons for this. If you do this verbally, make sure that this is confirmed in writing because the employee is likely to be upset and may not remember the entire conversation. Government guidance recommends that this is done within 1 day of the suspension.

It is essential that you reassure the employee that their suspension is not a disciplinary action and does not imply any assumption that they are guilty of the issues being investigated. It is also important that the manager suspending the employee does not say anything that might suggest that a decision has already been reached, even if they do so in a genuine attempt to reassure the member of staff. Therefore avoid telling the employee that they “have nothing to worry about” as the purpose of the investigation to find out whether the allegations against the suspended individual are valid.

It is also good practice to tell the employee how long you anticipate the suspension will last, whether they can communicate with other members of staff during this period and if they will have access to their work systems (such as email) etc. Make it clear that the employee will continue to receive full pay and any benefits during their suspension and give them the name of someone within the organisation that they can speak to if they have any queries or concerns.

You should also regularly review whether it is still necessary to suspend the employee, particularly in circumstances where the investigation lasts for more than a couple of weeks.

Q4: Do employees have the right to be accompanied at an investigatory meeting?

No. Employees have no statutory right to be accompanied at an investigation meeting, but they may have a contractual right to do so. This usually only applies to professionals, and it is worth checking your policy and the employee’s contract of employment to be sure.

If the employee is disabled, it may be a reasonable adjustment to allow them to be accompanied – including by someone other than a colleague or trade union official such as a friend or family member.

You may also wish to exercise discretion and allow other, non-disabled employees to be accompanied. Representatives cannot answer questions on behalf of the employee, but can sometimes help the employee to understand the process and the allegations against them.

Q5: Who is the best person to carry out an investigation?

Generally the individual’s line manager is best placed to carry out an investigation particularly if the issues are relatively clear and s/he understands the process. In the context of schools and FE colleges the investigating officer would normally be the head teacher or principal or a member of the senior leadership team (check the disciplinary procedure). Anyone who acts as an investigating officer cannot chair any subsequent hearing. 

HR do not normally carry out investigations, but are often on hand to provide support.

Whoever carries out the investigation should have a good knowledge of the school or FE college and how it operates.

The investigator should not:

  • be personally involved in the issues under investigation;
  • have any conflict of interest;
  • be influenced by the people involved in the matter;
  • have any involvement in the subsequent decision making process

Q6: We suspect an employee of serious misconduct. How thorough does the investigation have to be?

You must carry out a reasonable investigation. What is reasonable will depend upon the nature of the allegations and, generally, the more serious these are, the more you will be expected to do. At one extreme there will be cases where the employee is virtually caught in the act and others where there is only circumstantial evidence of the employee’s guilt. As the scale moves towards the latter end, the amount of enquiry and investigation is likely to increase. In addition, you will be expected to do more where the employee could be dismissed from employment or debarred from their profession – but, even in these circumstances, there is no requirement for you to leave “no stone unturned”: the test is one of reasonableness. 

For example, a tribunal found that an employer should have watched five hours of CCTV footage to find out whether the employee’s version of events were accurate in circumstances where she was accused and then dismissed for theft. However, it was unnecessary for a different employer investigating an employee’s exaggerated expenses claims over a three month period to examine and seek an explanation for every journey. It was reasonable for the employer to focus on a handful of expense claims.

The investigation must be fair and even handed. This means that the investigator should look for evidence that points to the employee’s guilt as well as that which points to their innocence.

You must be particularly careful about interviewing pupils. Consent to interview the child needs to be obtained from the person with parental responsibility and/ or the child if they are of sufficient age and understanding to make this decision. The interviewer must not interrogate the child and every effort should be made to ensure that their account is spontaneous and free from the interviewer's influence. The details of the child’s account must be recorded and signed both by the interviewer and the child.

In cases where the allegations, if proven, indicate that a person is unsuitable to continue to work with children in their present position, or in any capacity you may have to consider referring the issue to the local authority’s social care team and/or police. The local authority designated officer (LADO) should be informed of all allegations that come to a school or FE college’s attention and appear to meet the minimum threshold criteria so that he or she can consult police and local authority children’s social care colleagues as appropriate. 

Q7: Our investigator has interviewed two witnesses who wish to remain anonymous. What shall we do?

The employee is entitled to know the case against him/her. This generally means that they should be sent copies of any evidence obtained (including witness statements) before any disciplinary hearing takes place.

The investigator should find out why the witnesses wish to remain anonymous and, if possible, try and resolve any concerns they have. The ACAS guide on investigations recommends that investigators should, wherever possible, avoid anonymising witness statements as this can disadvantage the employee and mean that s/he cannot effectively challenge the evidence.

Generally, unless the witness has a genuine fear of reprisals, the investigator should not agree to anonymise their statement.

Q8: What is the standard of proof investigators should work towards?

Investigators should try and reach conclusions about what did or did not happen on the balance of probabilities even when evidence is contested or contradictory. The investigator must decide if each allegation is more likely to have occurred than not and their report needs to be able to explain why they prefer one version of the matter over another. 

Q9: Should the investigator give an opinion on the appropriate sanction?

No. The role of the investigator is to consider the allegations against the employee and to determine whether on the evidence, they are likely to be proven or not.

It is common for an investigator to be asked to make a recommendation but they should restrict this to suggesting whether any further action may be necessary. In most cases an investigator should recommend formal action, informal action or no further action. Formal action might include initiating the disciplinary process.

Please note – an investigator should not suggest a possible sanction or prejudge what the outcome to a grievance or disciplinary hearing will be.

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