The purpose of an investigatory meeting differs from a disciplinary meeting, in that it is used to gather available facts. Therefore it is not part of the disciplinary process as such, however you will be able to clarify any matters of concern and explain your conduct. Based on your response, the employer will then decide if disciplinary action is necessary or whether further evidence is required – leading to a second investigatory meeting.
How much notice should you be given prior to an investigatory meeting?
According to the ACAS guidelines, “‘the meeting should be held without unreasonable delay whilst at the same time allowing an employee reasonable time to prepare their case”. There is no strict definition as to what constitutes as “reasonable” as it is entirely dependant on the case itself. With that being said, 1-2 days notice isn’t usually deemed “reasonable”, with 5 days notice being adequate notice.
How should your employer conduct an investigation?
You employer may appoint an individual to act as investigator (usually another member of staff), whose role is to consider all evidence and produce a report. In more complex cases of gross misconduct, where another member of staff is unsuitable or there are a lack of resources, the employer can appoint an external investigator. Wherever possible, the investigator should not be involved in the original conduct being investigated.
How will an employment tribunal decide if gross misconduct was a fair reason for your dismissal?
When considering whether dismissal was fair, a tribunal will take various factors into account, including:
- Was the matter properly investigated?
- Was the disciplinary meeting chaired by an impartial person?
- Was a disciplinary meeting held where you could state your case?
- Were you given sufficient notice of the meeting?
- Were you given notice of your right to be accompanied by a work colleague or trade union official?
- Were you provided with supporting documents and/or witness statement in advance of the meeting?
- Whether your employer had a genuine belief in your guilt;
- Was this belief reasonable?
- Did you have an adequate opportunity to state your case?
- Were you given the right to appeal the decision?
- Did your employer follow its own policy?
- Has consistency been applied by your employer for similar previous offences with other staff?
The most fundamental aspect, even though all of the above points are important, is whether your employer had reasonable grounds for believing, and genuinely believed, that you are guilty of the misconduct at the time and that adequate investigation was carried out at the time of those beliefs. This is otherwise known as the “Burchell test”.
In order to constitute as reasonable grounds for the belief, your employer must have:
- Genuinely believed that the misconduct had occurred
- Conducted an appropriate level of investigation and have sufficient material upon which to form that belief