Lindsay Parkinson, employment law consultant, Avensure reveals how investigating potential misconduct in the right way can prevent costly mistakes down the line
In order for society to move forward, there has to be a broad framework by which we all live and operate. The same applies to all businesses: from large corporations or small corner shops, we all strive to do the right thing no matter what. Policies and procedures crisscross organisations trying to ensure we operate fairly and consistently. Working together is a fundamental part of how we operate as an organisation but what if things go wrong? How do we deal with the issues then? What steps as an employer do you need to take?
Here is a real-world case that shows what can happen when we fail to get the basics right.
The area manager of the company came into work in the morning and was approached by a security guard who was doing collections. He informed him that there was no money in the drop safe and they had been advised a drop of over £4,000 had been made not long after midnight. If this money could not be recovered, that would be significant loss to the business.
The area manager spoke with the store manager who confirmed that he had deposited over £4,000 just after midnight in the drop safe. He had the till roll and cash summary for the previous day, which was due to be sent to main office.
After a brief discussion between the area and store manager, the latter was suspended on allegations of the theft of over £4,000 to allow an investigation to take place. The store manager protested his innocence, stating the safe was insecure and that access can be obtained through the drop chute. No notes were taken of the discussions and no action was taken to address the store manager’s concerns about the safe.
The store manager was then called to an investigation meeting by the area manager, where the allegations of the theft of just over £4,000 were made. The store manager reiterated his innocence, arguing that the safe was faulty and had been insecure for a considerable period of time.
At this stage, the investigation officer failed to undertake any checks of the safe, nor did he clarify what was meant by ‘unsafe’. The investigation officer also didn’t interview any of the employees who were in the store either the previous night or the morning after.
Based on the evidence available, a decision was made to pursue formal disciplinary action on the grounds of theft. At the disciplinary hearing, the store manager admitted counting and bagging the money up, placing it in the chute, setting the alarm and leaving site.
He reiterated his argument that the safe was not secure and that you could access it by the drop chute and retrieve whatever had been deposited. Other staff had entered the premises the following day and had access to the safe.
Based on the evidence available to the company, they decided to dismiss for gross misconduct and give the right of appeal to the individual. The appeal officer made a 220-mile round trip, which was quite reasonable in the circumstances given someone’s livelihood was at stake. He found the safe was insecure. You could reach through and pull back items of varying sizes through the flap, which is meant to be one-way only. He had spoken to staff onsite and they advised him that the safe had been damaged for about eight months and that they had raised the issue with the area manager repeatedly but couldn’t get anyone to repair it. What’s more, the staff members said nobody had asked them about the theft when it first happened.
The appeal hearing was scheduled and the former employee attended. Ultimately the appeal was upheld. The ex-employee didn’t wish to be re-instated as he had already secured other work elsewhere and the company settled the matter.
What can we conclude from all this?
Investigation – conducting a thorough investigation when you’re trying to establish the facts is of vital importance. At this stage, it is about gathering information and establishing the facts. No decision should be made until then. At this point, you decide whether the employee has a case to answer formally or you take no further action. This should be done in a timely manner.
Listening skills – it’s important that you listen to what people tell you and document this to allow you to make reference to it in the future. Be active in your listening and test your understanding of what you’re being told so that there’s no misinterpretation at a later stage. It’s OK to seek clarification if you dont understand what you’re being told.
Questioning – this is very much linked to listening and understanding what the employee tells you. Understanding the topic is important to enable you to ask relevant questions. You will need to be able to analyse responses to develop further questions.
Preparation and planning – it’s essential you’re not rushed into hurrying to bring the matter to a conclusion. Consider what you’re seeking to establish and build yourself a framework. It’s more important that you take time to establish the facts and then, once you’ve done so, make a decision based on the evidence available to you.
Taking notes – always have someone to take notes of the meeting. Don’t try to write your own notes, as you will miss or misinterpret something. The notes provide a basis for the decision and they should be simple, clear and concise. Anyone should be able to pick them up, read them and understand the case. The notes of the hearing become the basis for your decision as the employer.
Witness statements – have the witnesses write their own statements in their own words. Make sure they make reference to the date of the incident, who was involved, what was said and whether there were any other witnesses.
Reasonable belief – the hearing officer can make a decision based on the evidence available to them. This is called a ‘reasonable belief’. An employer doesn’t require proof beyond reasonable doubt. The burden of proof is significantly different for disciplinary hearings as opposed to a court of law.
Taking these steps can prevent a business from making a costly mistake when investigating potential misconduct. It may be an old adage but “by failing to prepare, you are preparing to fail”.