Investigating misconduct- Making sure you’ve understood the situation

 

Keeping up with what your employees are doing and making sure they are doing what you want them to do is part of day to day management.

However what happens if you think someone is doing something wrong and you need it to stop? Well if it’s a minor problem just tell them (you know the kind of thing: Stop calling the customers “pal”, Stop turning up late, Don’t pick your nose when making an appointment for a patient).

But what if it is more serious and you need to take more formal disciplinary action even dismissing the employee?

Well for a long time it has been accepted that you need to carry out as much investigation as was reasonable in the circumstances  especially if you want to dismiss someone. The case that forms the basis for the way misconduct is handled dates back over 30 years and is often referred to in employment law as the Burchell v BHS case named after an individual who was dismissed from British Home Stores (I do wonder how Ms Burchell feels about being so “famous”).

However in recent years the hoops that an Employment Tribunal expects you to go through to establish your investigation was thorough enough have got more and more complex for employers. That is not to say it’s a good idea to allow employers to dismiss people on a whim (it isn’t good for the business either) but now it is less acceptable too combine the investigation meeting with the disciplinary hearing and get it all done in one meeting. Now it is normal to expect employers to hold a separate investigation meeting, preferably with a different person conducting the two meetings. It’s hard to see how this actually does anything other than delay a resolution.

Whatever the rights and wrongs of the situation the consequences of getting it wrong can be dreadful. In a case I dealt with a few years ago a client of mine sacked an employee for bullying and harassment. The final straw came when the victim found a note attached to his car with a picture of a gun and the word “Beware” written under it. The alleged bully was known to have connections with far right groups. When questioned he said it was a” joke” that had gone wrong and he had put the note on the wrong car by mistake. The employer didn’t believe him as he already had a warning on file for this sort of behaviour and he had used the same excuse then.

What they didn’t do was investigate his excuse further by trying to find out who he had intended the message for and why he had got the wrong car. When the case came to court the tribunal found for the employee, not became they believed him, just because the employer hadn’t looked into his excuse. The employer paid out £15,000 in damages.

Even more frustrating when they did look into it they could have easily disproved the bully’s story, but it was too late then.

So I suppose the message is clear if you don’t investigate properly it could cost you thousands.

A Few tips to help you conduct a disciplinary investigation for you

1)      Try to get someone else to investigate for you.

2)      If you have to do it yourself, do not go into it “angry”, you need your wits about you.

3)      Do not prejudge the issue, your employee maybe the most Lazy/ useless/ deceitful (delete as appropriate) person you have ever met I but on this occasion they may be innocent.

4)      If they tell you a story that is completely different from your understanding, look into it.

5)      Challenge what they say, if it doesn’t make sense to you get them to explain it.

6)      Finally if you don’t believe them, tell them you don’t and ask them to corroborate their story.

 

If you have on employee you need to investigate give us a call on 0161 850 1122 for a free consultation.

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