It is essential to the fair management of disciplinary issues that no disciplinary sanction is imposed upon an employee until the misconduct of which he or she is accused has been properly investigated. The facts need to be established promptly before recollections fade. Care should be taken to ensure that the investigation is conducted in a way that is as confidential as possible.
It might appear unnecessary to investigate if the employee is 'caught in the act' committing some serious misconduct, such as stealing or fighting at work. However, even in this type of situation, some investigation of the surrounding circumstances will be needed, to ensure that the company has the full picture of how and why the misconduct occurred.
If the employee has been accused of serious misconduct, or there are grounds for believing that the employee could commit further misconduct or impede the investigation, it may be necessary to suspend the employee from work while the investigation is carried out.
The employee should be suspended on full pay, since the purpose of the suspension is to preserve the status quo rather than act as a disciplinary sanction. It is advisable to confirm to the employee in writing that the suspension is not a disciplinary sanction, and to keep the suspension as short as possible.
The steps that are involved in an investigation depend on the nature of the alleged misconduct. It is invariably necessary to interview the employee concerned. When deciding on the eventual sanction for the misconduct, the company may want to take into account whether the employee admitted the misconduct or lied about it when interviewed.
Depending on the circumstances, an investigation may also involve speaking to any witnesses to the alleged misconduct and the employee's line manager, and checking documentary evidence such as attendance records, appraisal reports and correspondence. A written record should be made of what is said during any interview.
As explained elsewhere in this section (The right to be accompanied), the Employment Relations Act 1999 gives every worker the right to be accompanied at a disciplinary hearing by a work colleague or union official of his or her choice. An interview held as part of an investigation into an act of misconduct will not amount to a hearing for these purposes, unless it could result in a warning that forms part of the employee's disciplinary record or some other form of disciplinary sanction. The ACAS Code advises that, if it becomes clear during the course of an investigatory interview that disciplinary action is called for, the meeting should be ended and a formal hearing arranged at which the worker will have the right to be accompanied.
Some companies may wish to have the right to search employees, their bags, lockers, desks and cars for evidence of misconduct such as theft of company property. If a company wants the option to search, it should ensure that employees are made aware when first recruited that they or their property may be searched. This should be done either by including this as a term in their contracts of employment or by stating it clearly in some other document that they are given, such as an employee handbook.
An employee is not obliged to submit to a search, and carrying out a personal search without consent would amount to assault. However, if an employee refuses to submit to a search when he or she has been told that a search is a possibility, or where the company has good grounds for believing that he or she may be concealing evidence of misconduct, the company is entitled to take that into account when deciding whether the misconduct has occurred and what the appropriate disciplinary sanction should be.
Some companies use monitoring or surveillance systems to monitor performance or detect misconduct. The legal issues this raises are summarised here, but companies that are proposing to adopt monitoring or surveillance techniques may also wish to contact their Association for advice on whether their proposals are appropriate and lawful.
If an employer’s monitoring or surveillance involves processing personal information about an employee, it must comply with the principles set out in the Data Protection Act 1998 ( Data protection ). ‘Processing’ includes obtaining, recording or holding information. So the Act applies, for example, if an employer records employees on closed circuit television cameras, opens their e-mails or listens to their voice-mails, or examines logs of websites they have visited or telephone numbers they have called.
The Information Commissioner has produced a Code of Practice and detailed supplementary guidance on how to comply with data protection principles when monitoring at work, as well as a Code of Practice dealing specifically with the use of closed circuit television ( Data protection ). The monitoring Code points out that employees have a legitimate expectation that they can keep their personal lives private and that they are entitled to a degree of privacy in the workplace. If employers wish to monitor their workers, they should be clear about their purpose in doing so, and be satisfied that the particular monitoring arrangement they are adopting is justified by the benefits it will deliver. This involves considering whether there are alternative ways of achieving their purpose, or less intrusive methods of monitoring that would deliver the same results. (It is also worth noting that excessive monitoring may well breach an employer’s important legal obligation not, without reasonable cause, to act in a way that undermines the trust and confidence that underpins the relationship it has with its employees. It could therefore lead to employees resigning and claiming unfair constructive dismissal ( dismissal ).)
The Code advises that information obtained through monitoring should be used only for the purpose for which the monitoring was carried out, unless an activity is discovered that no employer could reasonably be expected to ignore. Employers should ensure that the number of people who have access to personal information obtained through monitoring is kept to a minimum, and that arrangements are put in place to ensure that the information is kept and disposed of securely, and not retained for longer than is necessary.
In order to comply with data protection principles, employees should usually be told what monitoring is taking place and why. It will be lawful to monitor covertly only if the aim is to prevent or detect crime and letting employees know that the monitoring is happening would be likely to prejudice that aim.
Interception of communications
If an employer checks its employees’ use of e-mail, fax, telephones or the Internet, it must also comply with the Regulation of Investigatory Powers Act 2000 and the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000. This legislation applies where an employer accesses the content of an electronic communication in the course of its transmission. The legislation is complex but, in broad summary, an employer will comply with it if it has made all reasonable efforts to tell employees that their communications may be intercepted, and ensured that any interception is carried out only for legitimate business purposes. Those purposes could include performance monitoring, the prevention or detection of crime or the investigation or detection of unauthorised use of the system. The supplementary guidance that accompanies the monitoring Code of Practice gives further information about this legislation.
Electronic communications policy
If employers decide to monitor electronic communications, the monitoring Code recommends that they first establish a policy on their use and communicate it to their workforce. Companies planning to adopt a policy may find it useful to refer to the model policy on the issue ( Electronic Communications Policy ).
Some allegations of misconduct involve some form of criminal act, such as theft or assault. In these cases, the company will need to decide whether to involve the police. If the police are contacted, their decision on whether to investigate should not affect the company's handling of the case.
The criteria by which the police assess whether to investigate a criminal offence are very different to the factors taken into account by a company when deciding whether disciplinary action is appropriate for breach of the company's disciplinary rules. If the police do investigate and a decision is made to prosecute, the company should not usually suspend its own disciplinary procedure to await the result. Conviction for a criminal offence requires proof beyond all reasonable doubt. However, it is reasonable for an employer to discipline or even dismiss an employee on the basis of a genuine belief that the employee has been guilty of misconduct, provided that belief is based on reasonable grounds after a reasonable investigation.
Once the investigation is complete, the company will need to decide whether there are grounds for believing that the employee was guilty of misconduct and what the next step should be.
Even if there is evidence of misconduct, the company may consider it appropriate to deal with the matter informally, by counselling the employee or giving him or her an informal reprimand that will form no part of the employee's disciplinary record, rather than taking the employee through the formal disciplinary procedure. Even where informal action is taken, it is important for the company to make clear to the employee:
- how his or her conduct fell short of the required standards;
- what he or she needs to do to rectify this;
- how and when his or her conduct or performance will be reviewed; and
- what the consequences will be if there is no improvement - that is, that the formal disciplinary procedure may be invoked.
This should all be confirmed to the employee in writing.