March 2012

The know zone

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    In the case of investigations of misconduct, what is ‘fair’ and what actually constitutes unfairness? Richard Bird explains the basics that every investigating officer should know. More
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  • Heavyweight tactics?
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In the case of investigations of misconduct, what is ‘fair’ and what actually constitutes unfairness? Richard Bird explains the basics that every investigating officer should know.

All's fair...

Fair investigation is an extension of the duty of an employer to behave reasonably when deciding whether to dismiss a member of staff. It was part of the test in the leading case of British Home Stores Ltd v Burchell, which ought to be explained to every new member of a senior leadership team on appointment.

In essence, the principles of ‘fair’ are that the employer held the belief that the employee was guilty, had reasonable grounds to sustain that belief, and had carried out as much investigation as was reasonable in the circumstances. The employer is not obliged to go to enormous lengths to determine whether the employee had done what s/he was accused of; it is simply a reasonable belief, reasonably arrived at, on the balance of probability.

An investigation has only one purpose: to open up all the evidence. That evidence may sustain the belief that the employee has done what s/he is accused of doing. Clearly, if the investigation is blatantly unfair, it may not. However, the courts and tribunals have avoided laying down rules for investigation because there will always be some relationship between the seriousness and complexity of the case and the employer’s resources on the one hand, and the way the investigation can practicably be managed on the other.

No hard and fast rules

It is difficult to lay down hard and fast rules about unfairness but the investigator who began an investigatory interview with “Can you give me some examples of bullying by X?” might well be thought to be diminishing the value of the evidence presented.

Similarly, advertising for former members of staff who have complaints about a head, and only those staff, to contact the chair of governors, might also seem to diminish the value of any evidence collected by these means.

Incompetence is also unfair – for example, if an investigator fails to question some witnesses or does not check whether any witnesses have reason to be biased, that would constitute an incompetent investigation.

It is all too easy for a head to ask a former close colleague, now retired, to conduct an investigation into a member of staff without considering whether this introduces bias because the ex-colleague knows the parties involved. Similar difficulties can emerge in local authority-led investigations.

The report of the investigator can also be a problem. Some investigators set themselves up to suggest what governors should think. This includes, for example, boldly stating, “I believe this witness; I don’t believe this one.” If that is taken at face value, what is the point of the hearing?

Similarly, some investigators take it upon themselves to lay down the suitable sanction: “I recommend that this member of staff be given a final written warning.”

Although it is not a legal requirement, it is always a good principle to work to that an investigator’s job is to present the facts s/he has uncovered: no less and no more. It is for the employer to decide whether there is or is not enough prima facie evidence to justify a hearing.

Delegated power

Even a blatantly unfair investigation will not automatically invalidate a disciplinary hearing. The employer only has to be reasonably convinced. But for the hearing to be fair, governors or the head – if the head has that delegated power – will have to be trained to deal fairly with the report of the investigator.

They will have to make up their own minds as to whether the investigation was sufficiently rigorous to uncover the facts on the balance of probabilities; and they need to be looking out for bias in witnesses and in the investigation itself. They will need to weigh the validity of the evidence, among other things, by how it was gathered.

Of course, the best thing is to ensure that investigators operate properly in the first place. However much the guilt or incompetence of a member of staff is obvious to everyone, an employee must be given the full protection of a proper procedure and that includes proper investigation.

Heads have a duty to ensure that any colleague asked to conduct an internal investigation is properly trained. Where external agents are used, it is as well to check on what they think they are being asked to do and on how they propose to go about it.

It all takes time, of course, but it doesn’t waste nearly as much time as attending a tribunal and is much less unpleasant.

alls fair