What is a Disciplinary Investigation?
Where an allegation has been made against you at work, the disciplinary investigation is the process used to find out whether you have actually done the misconduct you have been accused of. The disciplinary investigation is a fact-finding mission. No more and no less. The purpose is to find out on the balance of probabilities whether you have a case to answer. It is not, and should not be an exercise to find out whether you are guilty. For more detailed guidance and resources on the disciplinary investigation see Surviving a disciplinary investigation at work
Disciplinary investigations can be carried out in a variety of situations, and not just in disciplinary action. Investigations happen for example where there are;
- Matters of misconduct
- Bullying and harassment
- Whistleblowing allegations
The ACAS code
You continue to have employment rights during the investigation. The ACAS Code of Practice on Disciplinary and Grievance Procedures applies to any matters relating to discipline. Your employer has a legal duty to act reasonably and use a fair procedure. The ACAS Guide gives directions on what it is to act reasonably and fairly, and the duties are further developed by the Courts and Tribunals in case law.
- The duty to act reasonably and use a fair procedure applies to the Investigation and anything that falls within this activity.
- Your employer can only conduct a disciplinary investigation for one of the 4 reasons in S98 ERA (1996). Redundancy is not included in discipline.
- If your employer does not use a fair procedure during investigation, a subsequent dismissal will be unfair and you would have a successful claim in the Employment Tribunal.
The Duty to Act Reasonably
The duty to act reasonably is also known as the band of reasonable responses. It is a legal duty of your employer laid out in Section 98 (4) (a) and (b) Employment Rights Act 1996. S.98 (4) (b) says that the duty to be reasonable should be decided in accordance with equity and the substantial merits of the case. Equity means natural justice, procedural fairness, an employee’s personal circumstances, common sense and common fairness. Substantial merits means “whether an employee’s behaviour or performance warranted dismissal”.
The Burchell Test
The duty to act reasonably was explained in the case of British Home Stores v Burchell (1978). Where there is a dismissal, the court said that an employer must prove that at the time of the dismissal
- they believed that the employee was guilty of misconduct
- the belief was based on reasonable grounds
- at the time of the belief they had carried out a reasonable investigation
The Balance of Probabilities
This means that it is up to your employer to prove that you have a case to answer. This task of proving or disproving is commonly described as “the burden of proof”. The Burden of proof is decided on “the balance of probabilities” The balance of probabilities means that something is more likely than not to have occurred, or it is more likely than not that the incident did not occur. If the probabilities are equally balanced then your employer has not satisfied the burden of proof.
The Employment Tribunal will not consider whether you were actually guilty of the misconduct, but whether your employer believed and had reasonable grounds for believing that you were guilty of the misconduct at the time the decision was made. The only way that your employer can prove that they believed and had reasonable grounds for this belief is by proving that they acted within S98(4) ERA 1996.
The Duty to Follow a Fair Procedure
A fair procedure is determined by reference to rules of natural justice and the following;
- Whether the reason for dismissal falls within one of the fair reasons in Section 98(2) Employment Rights Act 1996 – Capability or Lack of qualification, Conduct, Redundancy, statutory restriction, some other substantial reason (SOSR). See Dismissal.
- ACAS Code of Practice
- Your employer’s Disciplinary Policy and Procedure
- The implied duty of mutual trust and confidence
The Polkey Reduction
The famous case of Polkey v. A. E. Dayton Services Ltd  is sometimes called the “no difference” rule. In this case the House of Lords said that an employer’s failure to follow a proper procedure (including investigation) is almost guaranteed to make any dismissal unfair. BUT. The Employment Tribunal may reduce the level of compensation if a fair procedure would still have led to a dismissal (The Polkey Reduction).
In every investigation the Band of Reasonable Responses (Burchell Test) AND a Fair Procedure must be applied. If they are BOTH not present, a dismissal will be unfair.
An employer who has failed to conduct a proper investigation into an employee’s misconduct was not able to successfully argue in subsequent unfair dismissal proceedings that the outcome (dismissal) would have been the same even if the investigation had been properly conducted. In A v B , The Employment Appeal Tribunal said that the employer’s investigation into an employee’s alleged misconduct was not reasonable in all the circumstances and, accordingly, his dismissal was unfair. It was no answer to the defects in the investigation to say that even if it had been reasonable, the decision to dismiss would still have been taken.
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Last Updated: [06/01/2022]