Serious employee misconduct should be handled carefully to ensure better outcomes
Workplace investigations into serious employee misconduct are fraught with legal risk. And when managed properly, you can satisfy a court or tribunal that there were fair and reasonable grounds for any action that your company took as a result of the investigation.
When to undertake a workplace investigation
Workplace investigations are formal processes that help employers to determine whether their staff have engaged in serious or gross misconduct that could warrant the termination of their employment. Serious or gross misconduct could include:
- illegal or unlawful behaviour,
- behaviour that creates a serious risk to the health and safety of colleagues and clients, or
- the harassment of colleagues and clients.
The workplace investigator will provide a confidential report to the employer. The report will be used by the employer in order to make a decision as to whether the employee’s contract should be terminated, or some other disciplinary sanction imposed.
Choosing the investigator
The investigator needs to be an independent person who will have no part in making the final decision on the outcome of the investigation. This helps to guarantee a fair and impartial investigation. This usually means choosing an external person from outside the business.
We can assist you in choosing a reliable investigator.
Informing the employee who is being investigated
The employer should provide a formal written notice to the employee. The notice states such information as:
- Detailed information that the employer has received that indicates that the employee may have engaged in the misconduct.
- Notice of being stood down without pay during investigations.
- The name and position of the investigator, and a time at which the employee may meet with the investigator.
- Outline the anticipated time frame of the investigation.
- The employee is given opportunity to respond to that information.
Our specialised lawyers can gladly assist you with the notice.
Carrying out workplace investigations
When carrying out workplace investigations:
- All information that is used as part of the investigation is kept confidential.
- The investigator should avoid relying on inexact or unclear evidence to reach a decision.
We can make it easier for you
We can help you to conduct effective workplace investigations by:
- Drafting a workplace investigations policy to ensure that your company complies with contemporary best practice.
- Managing your communications with the employee who is being investigated and any other employees who may be required to provide evidence.
- Advising you on the appointment of a competent investigator and the making of a decision after the investigation.
Please contact us now to discover how our experienced employment lawyers can help you conduct sensitive workplace investigations.