How to conduct investigations for a fair dismissal

It is a well established principle of employment law that in order for a dismissal to be fair, the employer must investigate matters adequately and then hold a disciplinary hearing giving the employee the opportunity to respond to allegations. It is frequently the case that employers will also hold a separate investigation meeting and this concept is also incorporated into the Acas Code of Practice in this area which states as follows:

It is important to carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case. In some cases this will require the holding of an investigatory meeting with the employee before proceeding to any disciplinary hearing. In others, the investigatory stage would be the collation of evidence by the employer for use at any disciplinary hearing.

Employers to act 'reasonably'

There is therefore no legal requirement that an employer should hold an investigation meeting before holding a disciplinary hearing in order for a dismissal to be fair. The law simply requires that employers act reasonably. If a separate investigation meeting is held before a disciplinary hearing, this would normally require that a separate manager is involved. The bottom line is that the employee must be informed and be aware of the allegations in order to respond and put his or her case. There is always an appeal to give the employee a second chance to explain their case.

What about an initial investigation meeting?

The Employment Appeal Tribunal has recently held in Sunshine Hotel v Goddard that there is no absolute requirement for a separate investigation meeting to take place. This is clarification on the point and we are often asked by employer clients whether a separate initial investigation meeting is required. Of course, if an investigative meeting is held first, the employer will never be criticised for taking this course of action. One other point to note is that the investigation meeting does not attract the right to be accompanied by a trade union representative or colleague whereas if it is a formal disciplinary hearing, the employee must be allowed the right to be accompanied in the above manner.

If you've been unfairly dismissed or are looking to dismiss an employee it wise to seek expert employment law advice. Speak to our employment team on 0113 320 5000 or email your questions to @email