Whilst some employee investigations in the healthcare sector take place under the auspices of the framework contained in Maintaining High Professional Standards in the Modern NHS (MHPS), what are the key considerations for proactively managing investigations for the rest of the workforce? Jodie Sinclair and Alastair Currie, Partners in Bevan Brittan's Employment Pensions and Immigration team, explain.
Take a breath and prepare
Resist the temptation to get into the main body of the investigation immediately. Stop to consider important early steps, such as:
• An early 'case conference' to decide on strategy and approach
• Terms of reference (see below)
• Timescales (perhaps using a timeline)
• Whether any external bodies need to be informed, such as the police.
Set clear parameters
Concise and clearly defined terms of reference are a vital initial step. Some suggested areas for inclusion in terms of reference include:
• Details of the commissioning manager, investigating officer and HR representative
• Allegations or concerns to be investigated
• Proposed timeframe
• Relevant policies, procedures and protocols
• Purpose for which the report will be used
• People to whom copies of the report will be provided at the conclusion of investigation.
Balance support vs over influence
If you are using your own investigator, the investigating manager will need HR support and guidance on general matters, such as process and procedure. However, it is important that this support does not stray into influencing the conclusions of the investigating manager, as this may render any subsequent dismissal unfair (Ramphal v Department for Transport, EAT).
Dealing with sickness and disability
How should investigators deal with a failure to attend investigation meetings or the disciplinary hearing due to sickness absence? Caution is required here, especially where the absence may be due to a disability. However, if continued absence threatens to stall the process, it may be advisable to obtain further medical evidence – e.g. what can the employee do, rather than what they cannot do. Alternative ways of investigating /conducting a hearing may also be offered – for example, at the employee's home / a neutral location, or by telephone.
If a solution acceptable to both parties cannot be found, and continued absence is likely to hinder an investigation, then it may be acceptable to write to the employee explaining why their absence is a problem and that the investigation may be concluded without their contribution. The consequences of continued non-attendance must be clearly explained, with any subsequent decisions being based on the evidence available.
Manage overlapping procedures
A grievance raised by the employee under investigation need not derail the process: the disciplinary process may be temporarily suspended in order to deal with the grievance and then re-start. However, where the grievance and disciplinary cases are related, it may be appropriate to deal with both issues concurrently. You will then have to judge which option is appropriate, depending on the circumstances
Manage the paper trail
From the outset, keeping an accurate record of an investigation carried out is crucial: it is evidence of a reasonable and thorough investigation.
A useful tip is to collate papers as they come in. Some employers arrange for a minute taker to be present at investigatory meetings and for minutes to be supplied to attendees following the meetings for feedback – any un-agreed comments can be appended to the minutes.
Remember the wide duty of disclosure
A final, but important, point is to the wide scope of the duty of disclosure to an employment tribunal. You must disclose all relevant evidence in your control, including evidence which might be detrimental – for example, internal emails between HR and the investigating manager, emails within HR, manuscript notes of meetings and diary entries. The main exception is legal advice regarding the dispute – this can be kept confidential – so it may be advisable to deal with some queries or amendments to documents under legal privilege.
Both in relation to investigations under MHPS and otherwise, we are working with clients to advise on the management of the process and providing ongoing skills and knowledge transfer to your workforce; we also have expert investigators available to handle full investigations on your behalf, including final reports. In addition to our internal expertise, we also provide clients' with access to our Associates Network of external workforce, OD and employment law specialists who can provide additional support with managing investigations for you. Please do contact us for more information.
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