Managing Staff Disciplinary Investigations

Guidance on how to deal with a very sensitive procedure

When an issue arises in school that may require a disciplinary investigation it is of critical importance that any accompanying process is managed in a fair, reasonable and procedurally compliant manner. Such situations can be extremely time consuming and stressful for everyone involved. Here, in the first part of a series two articles on this topic, Martin Cain provides a number of key pointers designed to help schools ensure they manage the pre-investigation process appropriately.

De-escalation

  • It is important not to take the decision to begin an investigation too early or in a reactive manner.
  • Explore all informal routes first and build in pre-investigation fact finding into the disciplinary policy.

Purpose of investigations

Investigations are an enabling/facilitating process which should:

  • Establish the relevant facts, evidence and determine what probably happened;
  • Collate and present the evidence in a coherent, fair, reasonable and objective manner; and
  • Provide a comprehensive investigation report for review by the commissioning officer.

Investigations should not be seen as:

  • An opportunity for the investigating officer to expressing an opinion about whether an employee is guilty or not of the alleged misconduct – either during investigation meetings or in the report; and
  • A vehicle for recommending a disciplinary sanction against an employee or any other actions.

Types of investigation

In addition to the disciplinary policy schools will usually have a number of other employee related policies in place which will also include provision for carrying out an investigation. These are:

  • Grievance;
  • Dignity at Work (Bullying and Harassment);
  • Safeguarding and Child Protection;
  • Whistleblowing; and
  • Complaints.

It is very important that any allegation or concern raised, and subsequent investigation, are dealt with under the appropriate policy and this may not be the disciplinary policy. Schools should avoid conflating the use of these policies, whilst ensuring that there is provision in them all (including the disciplinary policy) to run concurrently and not prejudice their respective outcomes. For example, the relevant policies should state that where the disciplinary Policy and grievance issues are related, it may be appropriate to deal with them concurrently.

Overview of the relevant law and the importance of a fair and legally compliant process

The Implied Term of Trust and Confidence (often referred to as “ITTC” for ease) comes up frequently in employment cases, primarily in the context of an employee alleging that they have been or are being constructively dismissed but also in the context of an employer seeking to use it as a reason to expressly dismiss an employee. Whilst it is commonly referred to, it is, however, seldom accompanied by any real legal analysis.

"ITTC" was first fully articulated in the case of Woods v WM Car Services Peterborough Limited [1981] where the Employment Appeal Tribunal stated that “the employer must not, without reasonable and proper cause, conduct itself in a manner calculated [or] likely to destroy or seriously damage the relationship of trust and confidence between employer and employee”. This provides a helpful mantra for schools to adopt to help them ensure they avoid being taken to a tribunal for unfair dismissal.

S98(1) Employment Rights Act 1996 states: “In determining whether the dismissal of an employee is fair or unfair, it is for the employer to show:

  • the reason (or if more than one, the principle reason) for the dismissal; and
  • that the decision to dismiss was reasonable in all of the circumstances.”

Contextual information

In the context of the reference to the Employment Rights Act, schools should also ask themselves three key statutory questions about any disciplinary action taken against an employee:

  1. Do any decisions fall within the range of reasonable responses?
  2. Has the statutory Acas Code of Practice on Disciplinary and Grievance Procedures been followed?
  3. Has a reasonable investigation taken place?

The implications for schools of falling foul of the law may include:

  1. Low employee morale and productivity.
  2. Loss of good employees.
  3. Reputational damage.
  4. Tribunal claims for unfair dismissal, constructive dismissal and discrimination.
  5. Significant financial loss due to professional fees and tribunal awards.

Four pre-investigation steps

Before taking the decision to undertake a disciplinary investigation the relevant senior leaders would be well advised to consider whether the four pre-investigation steps below have been taken:

  1. A preliminary fact-finding process has taken place.
  2. Support has been sought from HR Team.
  3. Self-questioning – are there genuine grounds for launching an investigation on this issue/allegation?
  4. The issue/allegation is not serious and/or preliminary fact finding shows it could be dealt with informally.

In the second article in the next edition of the eZine, Martin will provide advice and guidance for schools on the formal aspects of the process once the decision to undertake a disciplinary investigation has been taken. This will include:

  • Formal stages and responsibilities
  • Correspondence
  • Suspension
  • The investigation - key components: -Interviews -Facts and evidence – review and analysis -Investigation report
  • Preparing a disciplinary ‘bundle’
  • Hearing - Roles and responsibilities
  • Decisions
  • Post-investigation issues