Law guide: Employment

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Investigations into disciplinary matters

Investigations into disciplinary matters

Contents

Establishing the facts

It is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case.

When investigating a disciplinary matter, take care to deal with the employee in a fair and reasonable manner. The nature and extent of the investigations will depend on the seriousness of the matter, and the more serious it is, then the more thorough the investigation should be. It is important to keep an open mind and look for evidence which supports the employee's case as well as evidence against.

In misconduct cases, where practicable, different people should carry out the investigation and disciplinary hearing.

In some cases, the investigation will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing. In others, the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing.

If there is an investigatory meeting:

  • You may wish to give the employee advance warning and time to prepare (but this is not mandatory).
  • It should not by itself result in any disciplinary action.
  • It should be conducted by a management representative and should be confined to establishing the facts of the case. It is important that disciplinary action is not considered at an investigatory meeting. If it becomes apparent that formal disciplinary action may be needed then this should be dealt with at a formal meeting at which the employee will have the statutory right to be accompanied.
  • Although there is no statutory right for an employee to be accompanied at a formal investigatory meeting, such a right may be allowed under an employer's own procedure.

Suspension

In cases where a period of suspension with pay is considered necessary, this period should be as brief as possible, should be kept under review and it should be made clear that this suspension is not considered a disciplinary action.

There may be instances where suspension with pay is necessary while investigations are carried out, for example, where relationships have broken down, in gross misconduct cases or where there are risks to an employee's or your business's property or responsibilities to other parties. Exceptionally, you may wish to consider suspension with pay where you have reasonable grounds for concern that evidence has been tampered with, destroyed or witnesses pressured before the meeting.