Managing Staff Disciplinary Investigations Part 2
Guidance on how to deal with a very sensitive procedure
In the second part of this two-part article, Martin Cain provides a number of key pointers designed to help schools ensure they manage the pre-investigation process appropriately. Here, he now provides further guidance about the best ways to carry out all aspects of a disciplinary investigation, once the decision has been taken by the school to do so.
Formal Stages and Responsibilities
It is vitally important that a number of key actions are assigned as the responsibility of the appropriate individuals and sequenced in the order in which they are presented in the table below:
Correspondence
The Investigating Officer should write to the relevant individuals (complainant/subject/witnesses) as appropriate to:
- Explain their appointment as Investigating Officer, including details of the allegation;
- Request the individual to attend an investigation meeting, including a reminder of right to be accompanied and providing sufficient notice to enable attendance of companion;
- Provide the proposed date, time and location of the meeting;
- Explain that a statement will be taken, how it will be taken and checked;
- Reinforce the need to maintain confidentiality; and
- Provide their contact details.
Key Components of an Investigation
A) Interviewing witnesses
- The Investigating Officer must: • Prepare an investigation plan; • Decide on who needs to be interviewed and why; • Based on the terms of reference for the investigation, consider what facts need to be established; • Consider what questions need to be asked to establish facts to support or challenge the allegation; • Draw up an interview plan; • Decide when, where and in what format will the meetings will take place and any privacy requirements or reasonable adjustments; • Consider whether a note taker should be present; and • Send invitations to attend giving at least 5 days’ notice, including the right to a companion.
- B) Interviewing techniques
Attending a disciplinary investigation meeting can be a very stressful experience for an employee and it is important for the Investigating Officer to do everything they can to put them at ease. Appropriate techniques may include: • Using appropriate body language, remaining tactful, calm and objective; • Encouraging the employee to recall events in their own words; • Focusing precisely on the allegations; • Avoiding asking questions which imply guilt; • Listening carefully and showing they are listening; • Not being afraid to revisit an answer if it is unclear or contradictory; • Reflecting back to check understanding; • Not expressing any opinions; • Remaining silent at times as this can encourage the interviewee to talk; and • Remembering they are not cross examining or grilling the employee.
C) Interview questions
- The use of appropriate questioning techniques can not only help the interview to run smoothly but also to ensure that the detail around the allegation is explored. The Investigating Officer should use: • Ice breaker questions to put the employee at ease; • Open questions – e.g. ‘Can you tell me what you heard or saw on that day?’; • Closed questions in order to obtain specific information – e.g. ‘What did X say to Y?’; • Probing questions can be used to test the evidence – e.g. ‘You said that you saw pupil A in X’s classroom. What exactly did you see them doing?’; • Questions about feelings that can add context- e.g. ‘What concerned you about X’s behaviour?’; • “What else questions?” – e.g. ‘Do you remember anything else about the way X was that morning?’; and • Questions that ask for a summary can help to round up an interview – e.g. ‘Am I right to take it that you are saying that on x date, you were …and then this happened etc.’
D) Reviewing and analysing all of the facts and evidence
The Investigating Officer must: • Examine all the evidence objectively; • Consider the employee’s explanation and version; • Distinguish between fact, opinion and weight accordingly; • Review evidence on the balance of probabilities; • Consider accuracy, inaccuracy or combination. They must not: • Base anything on instinct; • ‘Miss’ evidence that does not support the allegation; and • Provide a report to order.
E) The investigation report Every investigation needs an outcome and the must establish if there may be a case to answer. The test of proof is not one of ‘beyond all reasonable doubt’ but what a reasonable person could logically and reasonably conclude on the balance of the evidence. The investigation report should therefore: • State what probably happened but link back to the relevant evidence; • Be fact based; • Contain no recommendations on sanctions; • Not include any opinions; and • Not be a vehicle for upholding or dismissing of allegations. The report should also be clearly structured as follows: • Introduction – including the purpose of the investigation and its term of reference; • The investigation process/methodology – including the evidence considered and the people interviewed; • The investigation findings, including: I. Summary of written and any physical evidence; II. Summary of witness evidence; III. Facts established; IV. Cross reference to passages of the relevant policies; V. Facts that could not be established; and VI. Mitigating factors. • Conclusions/recommendations: I. Case to answer for formal action; II No case to answer for formal action; III. Matter dealt with informally in line with Disciplinary Policy; and IV. No further action recommended. •Key policies relevant to the allegation and investigation included as appendices e.g. Disciplinary, Safeguarding etc.
F) Next steps The investigation report should be presented to the Commissioning Officer who, after considering it carefully, should decide whether or not there is a case to answer and a need to proceed to a disciplinary hearing.
Suspension
- Any decision to suspend an employee must always be given very careful consideration, including:
- A commitment that the suspension will be kept as brief as possible and to it being kept under review;
- A clear acknowledgement that “suspension is not an assumption of guilt and is not considered a disciplinary sanction.”;
- Making the reasons for the suspension clear to the employee;
- Allowing the employee to be accompanied at the suspension meeting wherever possible; and
- Assigning a senior member of staff to serve as a point of contact for the employee during the period of suspension