While every workplace will face the reality of employee misconduct at some stage, it is surprising how unprepared we find most employers are when it comes to dealing with the reality of alleged misconduct.
Here are a few of the traps you may encounter with some tips to help you navigate a sound process of investigation.
1.Don’t ignore your own policies!
Remember when you drafted those policies years ago that you may not have reviewed recently? Well there might be one that deals with the procedures that must be followed in an investigation. If you fail to follow the process and just make something up ‘on the run’ you are far more likely to open yourself up to a claim for a breach of the employment contract which refers to your forgotten policy or alternately a failure to afford the person being investigated with procedural fairness.
2.Don’t consider suspension if there are no reasonable grounds to do so!
Any period of suspension should ideally be as short as possible, while still allowing you to carry out a reasonable investigation into the allegations of misconduct. Our experience is that a protracted period of investigation will lead to a claim that the process was unfair to the employee and this is arguably true.
Remember that you can only suspend an employee without pay if there is a contractual right to do so; and if there are 2 employees involved in the alleged incident, it may be necessary to suspend both employees during the investigation to ensure there is no allegation of bias.
You are entitled to and should make it clear to the employee that they should not attempt to influence any of their colleagues who are involved in the disciplinary proceedings. Nevertheless it may be considered unreasonable to prevent the suspended employee from contacting colleagues at work if this is necessary for the preparation of their case in order to answer the allegations.
See our next post outlining when to conduct a formal investigation.
Janine Speirs is an experienced Employment Lawyer offering advice to employers and employees on a range of employment related matters.
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