ACAS Annual Report: Employment tribunal claims on the rise
Employment law: Effective investigations FAQs
1. If you can’t meet the individual at the investigation stage is it enough to give them the right of a response at a Hearing?
The ACAS guide states that it will not always be necessary to hold an investigatory meeting.However, in the majority of cases holding an investigatory meeting with the employee being investigated is likely to be a key part of the process and following a fair process overall.
If an investigatory meeting is not held with the employee or, despite reasonable efforts they fail to attend, then it remains important that the employee is allowed time to prepare their case and given copies of any relevant papers and witness statements in advance of a hearing.
2. Is there any advice on how to approach a whistleblower on an alleged issue of safeguarding?
It is important to follow any whistleblowing policy that your company may have. Conducting an investigation relating to whistleblowing is likely to follow a similar format to investigations relating disciplinary and grievances, however, owing to the nature of whistleblowing allegations, we would usually recommend that you have a specific whistleblowing investigation policy.
You will still need to consider who is best placed to investigate, analyse the issues and consider what sources of evidence you may have. This may include documentation, witnesses and other evidence such as CCTV. It is likely to be particularly important that you consider whether issues of confidentiality and anonymity are relevant. The Government have produced a document called Whistleblowing: Guidance and Code of Practice for Employers which may be of assistance.
3. For first level formal warnings is it ever acceptable to have the same manager investigate and issue the formal warning following a hearing?
In misconduct matters it is not uncommon for the same manager to investigate a matter and provide the employee with the formal outcome.However, it should not be the same person investigating and deciding what that outcome is going to be, except in very limited circumstances.
4. What happens if a person records the interview even if you said no?
Unfortunately, even if somebody records the interview when you tell them not to it is likely that a Tribunal would still consider this recording as evidence if it went to this stage.
If you have a clear policy on recording, you may be able to rely upon any covert recording by an employee as a disciplinary issue.
It is therefore good practice that you keep clear notes of any interview and send these to the employee to sign a copy indicating agreement that they are an accurate record of the interview.If an employee does not agree the notes, you may consider inviting the employee to make comments, indicating that the original notes and the employee’s comments will both be kept on file.
5. If nothing is written in contracts in relation to video monitoring, is it considered lawful to use in sickness absence cases?
There is good guidance from the ICO on covert monitoring in the Employment Practices Code.In reality the covert monitoring of workers can rarely be justified, particularly if your policy does not make employees aware that this type of monitoring may take place. It must be exceptional circumstances that justify this monitoring.There is case law on the situation where an employer does not believe their employee to be sick. In this particular case the ICO felt that there were not exceptional circumstances and the company did not have the necessary evidence to justify their suspicion and they also had not considered other measures such as discussing her sickness absence with her.
You should therefore be cautious if looking to monitor employees and we would recommend taking legal advice before doing so.
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