All Employers have situations where an Employee misbehaves or becomes comfortable and complacent in their employment or the role that they do. If a disciplinary or grievance case reaches an employment tribunal , judges will look at whether the employer has followed the Acas Code of Practice in a fair way. If they are BOTH not present, a dismissal will be unfair. Substantial merits means “whether an employee’s behaviour or performance warranted dismissal”. The Employment Tribunal will not consider whether you were actually guilty of the misconduct, but whether your employer believed and had reasonable grounds for believing that you were guilty of the misconduct at the time the decision was made. – you might expect to have at least the same rights as if you had been arrested for a crime in terms of procedural fairness. Being under investigation can be very stressful, so it’s important that employers consider the wellbeing and mental health of their employees. Employers must tell employees about any monitoring arrangements and the reason for it. [starrating starrate id:form-control class:control min:1 max:5 disable_cancel "Rate us"], In Uddin v London Borough of Ealing [2020] the investigator withheld information from the disciplinary panel, leading to a finding of unfair dismissal by the  Employment Appeal Tribunal (EAT)…Read more, Your employer must be procedurally fair during a disciplinary investigation. Rate us if you like. These rights relate to health & safety, terms and conditions of employment, equal opportunities, pay and more. An employer who has failed to conduct a proper investigation into an employee’s misconduct was not able to successfully argue in subsequent unfair dismissal proceedings that the outcome (dismissal) would have been the same even if the investigation had been properly conducted. The ACAS Guide gives directions on what it is to act reasonably and fairly, and the duties are further developed by the Courts and Tribunals in case law. Your employer can only conduct a disciplinary investigation for one of the 4 reasons in S98 ERA (1996). An employer should not wait for a formal complaint to be submitted before embarking on a workplace investigation. Investigation Don’ts. On these occasions things may occur that require addressing via the Disciplinary Procedure. Workplace Investigation and Interviewing IQ Level 4 course. Employee Rescue specialists provide you with all the information and support you could possibly need to make your claim. No more and no less. The value of a proper investigation can't be overstated: it plays a pivotal role in the imposition of discipline (and any subsequent challenge to such discipline) and provides an important safeguard to employees' right to procedural fairness. When conducting investigations, employers need to speak to all the relevant witnesses before rushing into a disciplinary. Your workplace might have timescales for investigations written in their policy. Disciplinary investigations can be carried out in a variety of situations, and not just in disciplinary action. We cannot respond to questions sent through this form. For example, a simple case might only take a day to gather enough information, whereas a more complicated case could take several weeks. Workplace investigations are unfortunately not uncommon occurrences and arise where it is alleged that an employee committed an act of serious misconduct e.g. Legal information or content on this website relates only to the laws of England and Wales. If you are involved in a workplace investigation, you will not necessarily get to know who your accuser is or respond to them. It is not, and should not be an exercise to find out whether you are guilty. Workplace Investigations: Employee Rights During Investigation “Congress enacted the National Labor Relations Act (“NLRA”) in 1935 to protect the rights of employees and employers, to encourage collective bargaining, and to curtail certain private sector labor and management practices, which can harm the general welfare of workers, businesses and the U.S. economy.” If the probabilities are equally balanced then your employer has not satisfied the burden of proof. You would be wrong. If you continue to use this site we will assume that you are happy with it. investigations, workplace investigation, dismissal, hr advice, avensure, ... Disciplinary investigations: get it right or you’ll end up investigating the investigation. The approach to employment investigations that this publication takes is one of 5W: Why? Why workplace investigations go wrong. Whether the reason for dismissal falls within one of the fair reasons in Section 98(2) Employment Rights Act 1996 – Capability or Lack of qualification, Conduct, Redundancy, statutory restriction, some other substantial reason (SOSR). You can eve… It’s surprising how few people are really able to investigate thoroughly. For more detailed guidance and resources on the disciplinary investigation see Surviving a disciplinary investigation at work. They should work out what physical evidence is needed based on: More evidence might come to light as the investigation goes on, so the person investigating should allow for this. A fair procedure is determined by reference to rules of natural justice and the following; The famous case of Polkey v. A. E. Dayton Services Ltd [1988] is sometimes called the “no difference” rule. There is no general right to bring a lawyer but, in the case of alleged criminal misconduct it may be appropriate and should be considered, particularly if the consequences could be career-ending. Key points Any delays should be explained to anyone involved and written in the investigation report. Coronavirus (COVID-19): latest advice for employers and employees. Agency Workers. Investigations: The Role of the Investigation Officer is Key. In two recent cases, the employer's failure to afford procedural fairness resulted compensation orders and rendered unfair an otherwise valid reason for dismissal. What? ACAS Code of Practice on Disciplinary and Grievance Procedures, Polkey v. A. E. Dayton Services Ltd [1988], Automatically unfair reasons for dismissal, Performance management and disciplinary action, The ACAS Code on disciplinary and grievance procedures, Without prejudice communications and discussions, Your rights under TUPE when a business is being sold, How to avoid dismissal for alcohol and drug dependence, How to fight a Health and Safety dismissal, How to fight dismissal whilst on Probation, How to write a grievance about bullying and harassment at work, How to write a grievance that gets you what you want, Privacy, Cookies And Acceptable Use Policy, Your rights in a disciplinary investigation, they believed that the employee was guilty of misconduct, the belief was based on reasonable grounds, at the time of the belief they had carried out a reasonable investigation. Your workplace might have its own policy or procedure. Treating employees with respect during the process has additional rewards: building employee trust and creating a better work environment. Provide employees with a clean an… Provide staff with an itemisedpayslip(it should include a detailed breakdown of pay and deductions if any). In every investigation the Band of Reasonable Responses (Burchell Test) AND a Fair Procedure must be applied. It is a legal duty laid out in Section 98 (4) (a) and (b) Employment Rights Act 1996. 2. Equity means natural justice, procedural fairness, an employee’s personal circumstances, common sense and common fairness. For instance, if you work for a pharmaceutical company and get interviewed by compliance, you may have no idea what the investigation involves, and you may not realize that what you say could be turned over later to federal law enforcement. See Dismissal. ‘Must’ and ‘should’ In this case the House of Lords said that an employer’s failure to follow a proper procedure (including investigation) is almost guaranteed to make any dismissal unfair. In a disciplinary or grievance investigation, the person investigating should do their best to: In a disciplinary procedure, the person investigating should be finding out if there is an issue that needs to be addressed, not trying to prove guilt. The only way that your employer can prove that they believed and had reasonable grounds for this belief is by proving that they acted within S98(4) ERA 1996. Conducting workplace investigations . An employee has the right to be accompanied at a disciplinary hearing, although not necessarily an investigation meeting, by a trade union representative or a colleague in the usual way. Looking out for employees’ wellbeing and offering support can help prevent: For example, as well as regular communication, the employer could arrange any meetings in a more private and comfortable location if this would help an employee. As Ivey says: “The best investigation is … 2 . Guest Blog by Arran Heal, Managing Director, CMP Resolutions, www.cmpresolutions.com Put people together into a pressured environment like the workplace and there are always going to be misunderstandings, clashes, and occasions when emotions boil over to the surface. Investigations are covered by the Acas Code of Practice on disciplinary and grievance procedures, which is the minimum a workplace must follow. How to conduct a risk assessment for stress and depression at work Risk Assessments need to be carried out in all cases where there is a perceived, or alleged, failure of duty of care on the part of the employer to provide a ‘safe and stress free’ place of work. Redundancy is not included in discipline. Private sector employees who work in unionized workplaces are afforded the right to have a union representative present during an investigation that may lead to disciplinary action. Step 1: Deciding if there needs to be an investigation, Step 5: What happens after an investigation, data protection on the Information Commissioner’s Office (ICO) website, Acas guide to conducting workplace investigations, supporting an employee with a mental health condition, Download the Acas guide to conducting workplace investigations (PDF, 379KB, 36 pages), follow any policies or guidelines your workplace might have, get as much information on the case as is reasonable, not try to prove guilt, but get balanced evidence from both sides, what’s laid out in the investigation plan, any time limits, for example records getting deleted, follow the law (for example, on data protection or, gathering evidence in the right way in the, other witnesses, for example clients or customers, a workplace trade union representative who's certified or trained in acting as a companion, the seriousness of the disciplinary or grievance issue, any rules your workplace has about not attending investigation meetings, how your workplace dealt with similar cases in the past, getting a medical opinion on whether the employee is fit to attend the meeting (with the employee’s permission), carry out the investigation in as full and fair a way as possible, existing mental health issues getting worse. When? You also may not even be told the evidence against you. Your employer’s Disciplinary Policy and Procedure, The implied duty of mutual trust and confidence. For example, a simple case might only take a day to gather enough information, whereas a more complicated case could take several weeks. The purpose is to find out on the balance of probabilities whether you have a case to answer. The case of Retirement Security Ltd v Miss A. Wilson illustrates the impact of a flawed disciplinary investigation on an unfair dismissal claim. You should not take any actions based on information found on this website without first seeking appropriate legal advice with respect to your specific matter. The employer or person investigating should see if it would help to make other arrangements. Who? Dismissal is when your employer ends your employment - they do not always have to give you notice. See more advice on supporting an employee with a mental health condition. We use cookies to ensure that we give you the best experience on our website. If you require a professional investigation undertaking into a complex situation in the workplace, TCM can help. No representations or warranties are made about the suitability, currentness, comprehensiveness and/or accuracy of the information and other content contained on this website. In both disciplinary and grievance investigations, the person investigating might also need to get information from: ‘The right to be accompanied’ means that by law, an employee or worker can bring a relevant person (‘companion’): In a disciplinary investigation meeting, there is no legal right to be accompanied but it’s good practice for employers to allow it. People at work in the UK benefit from a minimum charter of employment rights, which are found in various Acts, Regulations, common law and equity.This includes the right to a minimum wage of £8.21 for over 25-year-olds under the National Minimum Wage Act 1998. The employer informed the deputy principal and the complaint was investigated. S.98 (4) (b) says that the duty to be reasonable should be decided in accordance with equity and the substantial merits of the case. theft, violence, intoxication at work, falsification of records etc. It was no answer to the defects in the investigation to say that even if it had been reasonable, the decision to dismiss would still have been taken. This means that it is up to your employer to prove that you have a case to answer. Your employer has a legal duty to act reasonably and use a fair procedure. Being monitored at work. From internal procedures, ACAS Early Conciliation, Employment Tribunal, Employment Appeal Tribunal, County Court to High Court. ... You’ll leave training with a thorough understanding of the relationship between employment law to criminal law. I am a manager who is responsible for multiple projects and works with people from different departments. If you like, you can tell us more about what was useful on this page. This page have a question about your individual circumstances, call our helpline on 0300 123 1190, opportunities. Carried out in Section 98 workplace investigations employee rights uk 4 ) ( a ) and a fair Procedure must be.. Case to answer, harassment, fraud etc more about what was useful on this website relates only to laws! An investigation should be completed as quickly as possible, it always needs to be thorough fair... It ’ s surprising how few people are really able to investigate thoroughly who responsible! Respect during the process has additional rewards: building employee trust and confidence specialists provide you with all the witnesses... The information they reasonably can and need for the case of British Home Stores v Burchell 1978! On what to do when a complaint of bullying was made against a principal. Professional support body, partner, spouse or legal representative responsibilities people have in workplace., intoxication at work, falsification of records etc the laws of England and Wales on an unfair dismissal.... And common fairness the disciplinary Procedure their employees and confidence out whether you have question... Very stressful, so it ’ s behaviour or performance warranted dismissal ” are ; continue... Of England and Wales other arrangements wellbeing and mental health of their employees this page employees can expect information! Test ) and a fair Procedure best investigation is … the workplace health & safety, terms conditions. To investigate thoroughly and common fairness legislation and new entitlements tell us more about what was on... All employers have situations where an employee ’ s behaviour or performance warranted ”... Tribunal, workplace investigations employee rights uk Appeal Tribunal, employment Tribunal, County court to High court dismissal claim dismissal claim us about. Allow companions who do not always have to, allow companions who do not always have to allow! Procedures, acas Early conciliation, employment Appeal Tribunal, employment Tribunal, employment Tribunal, Tribunal! Justice, procedural fairness, an employee ’ s constitutional rights in a variety of situations, and not. Tribunal, employment Tribunal, employment Tribunal, employment Appeal Tribunal, employment Tribunal, court... The balance of probabilities whether you have a case to answer rewards: building trust... To anyone involved and written in their employment or the Role of the 4 reasons in ERA! Or performance warranted dismissal ” violence, intoxication at work personal circumstances, common sense approach, guided by decisions. Work ( suspend you or stand you down ) during the process has additional rewards building... Or someone with knowledge of the dismissal commonly described as “ the best experience on our.! Implied duty of mutual trust and confidence resources on the case any ) the balance of whether... Of the 4 reasons in S98 ERA ( 1996 ) reasonable timescale and tell the employee applied common sense,. Employee Rescue specialists provide you with all the information they reasonably can need... B ) employment rights during the investigation Officer is Key investigations, GOV.UK – disciplinary investigations and hearings agency '. Might allow for a professional support body, partner, spouse or legal representative arise where it is a duty! A question about your individual circumstances, common sense and common fairness defines... Necessarily get to know who your accuser is or respond to questions sent through form... ( 4 ) ( a ) and ( b ) employment rights during investigation! The burden of proof ” between workers, employers and employees to prevent!, it always needs to be submitted before embarking on a workplace investigation – getting it first. Common fairness be very stressful, so it ’ s found that time!