tpp hr seminar: disciplinary investigations & hearing

Wendy Blake Ranken, HR Consultant

wendy@blakeranken.clara.co.uk

The ‘big stuff’ that needs investigation and may lead to a hearing: ◦ Bullying and harassment

◦ Abuse of service user

◦ Theft

◦ Alleged dereliction of duty

2 key areas: ◦ A robust process

◦ ‘Upskilling’ managers

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Early conciliation

ET fees

A drop in ET cases

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Fees may come back

We want to do things fairly. This involves:

◦ Robust findings of facts/evidence

◦ Analysis, based on those facts

◦ Conclusions ‘on the balance of probabilities’

◦ Decisions that are ‘within the band of reasonable

responses open to an employer’

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Fair to all parties

A robust, evidenced report, with appendices including clear, signed interview notes and relevant documents

Outcome of disciplinary and appeal hearings are evidenced – reasoning is clear and documented

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A robust process

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State the specific allegation

State what policy has been breached

Eg:

The allegation is that X used racist language to Y on three occasions in September 2014, in breach of the Dignity at Work Policy

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For example:

Date for completion

The allegation

Relevant procedure(s)

Likely people to interview and dates

Documents to review

A time plan – dates of interviews, date to write report, date to submit report

Format of report

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Standard letters: invite to interview, invite to disciplinary, disciplinary outcomes

Template report format

Template for interview notes (with numbered paragraphs)

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Date

Investigator

The allegation

Methodology

Background to the employee

Background to the workplace

Chronology of events (in more complex cases)

Assessment of each allegation – evidence supporting and evidence not supporting – with cross references to appendices

(Conclusions – whether there is a case to answer)

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Clearing diary

No right to be accompanied at investigation interviews

Interview notes ‘taken as read’ after 3 working days

Interview scheduling – several on one day

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Supports the investigator

Completes terms of reference with investigator

Checks progress and provides support

Receives the investigation report

Ensures report is to required format and standard

Decides whether the matter proceeds to a hearing

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Upskilling managers –

key areas

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Questioning and probing skills

Listening skills

Impartiality skills

Understanding memory

Demeanour and credibility

Building rapport

Interview management

Report writing skills

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‘She was really aggressive to him in the kitchen’

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He is the sort of person who.....

This upstanding citizen ‘couldn’t possibly.....’

People like me, people not like me, ‘in

groups’ and ‘out groups’

‘She always does it that way...’

‘Can you do an impartial investigation please. This is one of our most difficult employees.’

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What can we remember?

Is our memory reliable?

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Risks of relying on demeanour ◦ Mistaken belief in witness who has lied

◦ Mistaken disbelief of truthful witness

Are we able to accurately detect a lie? ◦ Concealment

◦ Falsification

Confusing emotions ◦ Innocent witness - fear of being disbelieved

◦ Guilty witness - apprehension of being detected

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Is the individual telling the ‘truth’?

Is their evidence consistent with the documents?

Is their evidence consistent with other witnesses?

Is the evidence internally consistent?

Is it consistent with what they previously said?

Is it implausible, improbable or absurd?

What is their motive or interest in the outcome?

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The rambler

The reluctant witness

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Have a format with guidance

Managers then ‘fill in the blanks’

Consider practising report writing during investigation skills training

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Anticipating pitfalls

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Counter-allegations

Employee sickness absence Anonymous witnesses

Covert recordings

Bias in the disciplinary hearing

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A robust, objective process

Skilled managers

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