The first step when you think that an employee might have broken a rule is an investigation. A preliminary investigation can help to gauge whether it is appropriate to embark on a formal disciplinary procedure or whether the matter is better resolved by informal means.

It is important that investigations are conducted fairly, effectively and in good time.

It may seem as though events occurring outside of work could not be the responsibility of the employer but unfortunately that is not the law. An office party in or outside the office is an extension of the workplace and in some cases, even the after party comes under this umbrella. 

There are cases when casual after work drinks on a Friday for no other reason than ‘its payday’ can, ultimately be the employer’s responsibility.

For example, in cases of harassment in which the worker is not actually working but maybe connected with work. Whether or not acts committed outside of work are committed ‘in the course of employment’ will depend on the strength of the connection with work in each particular case.

It is for an employment tribunal to decide in each case whether the circumstances in which the harassment took place was an extension of the employment, or whether the connection with work is too weak.

Failure to carry out a reasonable investigation before taking disciplinary action will normally render any resulting dismissal unfair. In all cases investigations should be viewed as the bedrock of any action you take against an employee and should be of a standard that an employment tribunal would consider adequate.

The nature of the investigation required will vary depending on the circumstances of each case and what is stated in your contractual documentation, such as the contract or employee handbook.

Some cases may call for an investigatory meeting with the employee to establish relevant facts. In other cases, the investigation may involve gathering and collating documentary evidence, CCTV footage or witness statements.

The extent of the investigation required may also depend on whether the employee has admitted to the conduct in question. If the employees admit to allegations, the investigation need not continue.  

In cases where recollections are sparse, employers can also look to the venue not just for CCTV evidence but to establish what the venue staff remember from the night. Venue staff may be an invaluable resource to your investigation and employers would be expected to consider their perspective where possible during the investigation phase.

It is also important that confidentiality is maintained and investigations are carried out as discreetly and sensitively as possible. It is essential that witnesses are identified and interviewed promptly and separately to refute any allegations of collusion and whilst matters are still fresh in their minds. If a statement is taken from the witness then you should make them aware that this will be given to the employee as evidence.

The employee should be made aware that the investigation is an impartial inquiry into the facts; the purpose is not to build a case against the employee but to search for evidence which supports or rebuts any allegations.

In some cases, such as potential gross misconduct, it would be advisable to suspend the employee on full pay pending a full investigation. This allows an unhindered investigation to take place.

In addition, allowing the employee to continue working in such circumstances could be construed as demonstrating some tolerance of the alleged gross misconduct. However, employees should not be suspended as a kneejerk reaction, as this can potentially damage the working relationship if the allegation is later determined to be unfounded.

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