Should I Conduct a Formal Investigation into Misconduct?

When is there a need to conduct a formal investigation?

As a general rule, if a number of employees are involved, there is more than one incident complained about or there are a number of conflicting stories, a formal investigation is essential to ensure reliable findings.

If the potential consequences are very significant for the employee (i.e. dismissal), a higher degree of satisfaction is required to substantiate the allegations.

Who should the investigator be?

The investigator must have the appropriate skills and experience to conduct the investigation. Usually, if there are allegations against senior managers, or an internal investigation may reasonably be seen as biased, an external investigator is essential.

Arranging an interview with the employee

It is best practice to offer an employee a support person wherever practicable. In most cases, the employee should be provided with the allegations prior to their interview and be given time to prepare and gather supporting evidence.

If there is a need to put the allegations to the employee without having any evidence disturbed, or to ascertain their initial reaction, it may not be necessary to provide details of the allegations prior to the interview.

Interview other witnesses

If the employee mentions someone as a potential witness to a particular incident or asks for a particular person to be interviewed, it should be seriously considered. If additional allegations are raised, they must be included in the investigation, particularly if they are raised by the suspended employee.

Making a decision.

The investigator and the decision-maker should be independent. If there are findings that the complaints are substantiated, you should allow the employee an opportunity to respond to the proposed disciplinary action (i.e. termination) before making a final decision.

Janine Speirs is an experienced Employment Lawyer offering advice to employers and employees on a range of employment related matters.

This website and blog is made available by Havilah Legal only to give you general information and a general understanding of the law. It is not legal advice, and should not be treated as such.

Liability limited by a scheme approved under Professional Standards Legislation.