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Claire Morley-Jones

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Carrying out Witness Investigations - Guide for SMEs

Posted: 9/02/2012 19:24

There are times when both we and our clients suspect that HR has turned into both a police force and social services at the same time! Unfortunately, whilst HR can often add a great deal of value strategically to a business, investigations are re-active instead of pro-active and usually come out of either a grievance or disciplinary. This means they come with a lot of anxiety, stress and time attached!

For novices, investigations can cause the greatest amount of confusion and put the company in hot water. Often clients come to us with a story, situation or issue that seems pretty cut and dry at first, however, they rarely are and one should remember that there are always many different sides to the story.

There are times when an investigation is not called for i.e. someone is on their third occasion of unauthorised absence - then you can go straight to disciplinary and possibly dismiss but usually, you will need to ascertain all of the facts. Many clients would just rely on "he said, she said", however, you should speak to everyone involved as objectively and fairly as possible to get a full picture. This helps you to determine, as a first step, whether any wrongdoing has actually taken place, who was involved and whether you can hold a disciplinary with those individuals.

As a word of caution, you need to be more like a police officer and ensure a proper investigation has taken place, otherwise you could be leaving yourself open to a case for unfair dismissal. As an example, you believe Fred stole some stationary which is backed up by two note pads being found in his locker and Jim who insists Fred has always been dishonest and was "done for stealing" in his last job. At the disciplinary, Fred says it was not him but you don't believe him and dismiss. It is possible, that had you conducted an investigation, you would have discovered that Fred was sleeping with Jim's girlfriend, Jim put the pads in Fred's locker and Fred was innocent! In any event, if Fred takes you to tribunal and you cannot prove that you conducted a thorough investigation which looked at everything objectively, your decision to dismiss could be called into question and the dismissal deemed unfair!

It is particularly difficult for SMEs to carry out witness investigations because directors are required to play different roles in the process.

Here is a step-by-step guide for SMEs carrying out witness investigations

Step 1: Identify an investigating officer. This should ideally be a Director but could be the day to day line manager of the person as long as they weren't involved in the incident! Whoever conducts the investigation must be impartial and objective and must not have been involved or witness to the incident in any way. It is their role to find out if the person or people accused have broken any company policies and they should examine any pieces of evidence or talk to anyone about it keeping an open mind. This is the most difficult bit! Indeed, we have sometimes seen hardened veterans walk out of meetings with one person and be completely on their side to only speak with another person and change their mind! (None of our veterans I hasten to add!)

Step 2: Identify a disciplinary officer. This should be a Director, again who was also not involved or witness to the incident. They should also have absolutely no involvement in the investigating officer's evidence gathering exercise. It is their role to read all of the information dispassionately and undertake the disciplinary hearing if company policies have been broken. They also make the decision about whether or not a disciplinary sanction is required i.e. verbal warning, written warning, final written warning or dismissal. The company should have a policy to explain things like unauthorised absence equals a written warning, theft equals dismissal etc. Once the sanction has been issued, the individual has the right to appeal it!

Step 3: Identify someone to hear the appeal. If you only have two directors and both have already been involved, you now have no-one to hear the appeal! This person - who could be a third party adviser or bank manager - needs to consider all the information gathered and be able to objectively look at the processes undertaken to determine whether the decision and process was fair.

Step 4: Consider suspending those involved. If, for example, someone is alleged to have bullied other members of staff, you may deem it appropriate to suspend them so that they can't continue bullying anyone during the investigation. If you suspect anyone of tampering with evidence or intimidating witnesses, they should also be suspended during the investigation. You must make it clear that this is a precautionary measure and not a disciplinary sanction. This will usually be paid.

Step 5: Gather witness evidence. Once you have all the necessary people in place, the investigating officer can start the investigation. You must invite all witnesses to an individual meeting to give their account of what happened. They are not compelled to attend. When asking questions, start very general and get more specific about the events of the evening.

Either write down in detail or record the conversation. Remember to go back and re-question any witnesses if new information comes to light. Your aim is to have as much of the story corroborated by as many other people as possible. Everything must be kept completely confidential. After the meeting, send them a formal letter to thank them for their input and remind them of their obligation not to discuss it with anyone.

Step 6: Decide the outcome of the investigation. Once all the information has been gathered, the investigating officer needs to make a decision about what actually happened and whether any policies were broken. In a criminal investigation the test is "beyond all reasonable doubt", in an employment investigation it is "on the balance of probability". But you cannot go on gut instinct. You can "weight" the evidence given to you but must have a rationale and evidence for why you've done so. For example, using the scenario before it may be that you weight Fred's word higher than Jim's, because Jim has a personal grudge against Fred - but you must be specific and have true reason to believe one person over another.

Always remember if someone totally neutral were looking at this would they think you had acted impartially and fairly and if the police followed your methods would they get a conviction? In complex cases where more and more things come out of the woodwork, keep asking yourself "so what?" Does this actually contribute to the investigation you started, is it relevant, is it work related?!

Step 7: Decide upon disciplinary action. The disciplinary officer then needs to look at all the evidence for the first time from a fresh perspective and decide what action should be taken. Then issue the disciplinary to the person or people that have been shown to have broken policies.

Step 8: Hear the appeal. If the person or people accused appeals the decision to take disciplinary action against them or appeals the severity of action taken, you will need someone new to the investigation to hear the appeal. For the person appealing, the outcome could be better, the same or worse than the original charge - many don't realise this. The person hearing the appeal makes the ultimate decision about whether the action taken was too harsh, fair or not severe enough.

If you are unsure about how to deal with an employee grievance or dispute, seek professional HR and legal advice before doing anything.