The employer held an informal investigation meeting with the employee, who denied causing the damage. There was no CCTV footage to rely on, other employees had been in and out of the workplace during the day and could have (deliberately or accidentally) damaged the equipment, and nobody had witnessed the damage being caused.

Following investigation, there simply wasn’t enough robust evidence to suggest that even on balance it was this particular employee who had caused the damage.

On that basis, the Investigating Officer concluded having taken our advice that no formal disciplinary proceedings should be started.

Ordinarily that would be the end of the matter, but the importance of taking some action rather than no action can’t be understated.

What did we advise in this case?

In this case we advised the employer to send a company-wide email reminding employees of their obligations to take care of company equipment and to report any damage when it arises.

This communication means that should something similar happen again, it will help in the future to take further action – even those who fail to report damage when they notice it, may in future be subject to disciplinary action. This is called a “reasonable management instruction”.

Why did we give this advice?

Under UK employment law, decisions are made on the balance of probability, which differs from the criminal justice system for example, where a case must be proven beyond a reasonable doubt.

Where an employer suspects misconduct on the part of an employee, the first step should always be to investigate the potential misconduct.

Conducting investigations

The requirement placed on an employer is to conduct a reasonable investigation, not to conduct an investigation where no stone is left unturned.

What is reasonable will usually be case-specific, but often an investigation process will involve the appointment of an “Investigation Officer”, an informal investigation meeting with the employee suspected of misconduct and the gathering of any other relevant evidence (for example statements from potential witnesses, CCTV footage etc).

The investigation process will normally conclude with the Investigation Officer reaching a decision as to whether:

1. a) there is enough evidence to move to disciplinary proceedings, and;
2. b) whether disciplinary proceedings should actually be started

No evidence, following investigation

If, following investigation, there’s not enough evidence to establish at least a case in principle against the employee, it is unlikely that the Investigation Officer would recommend moving to formal disciplinary proceedings.

In that sense, it’s very difficult and would be unreasonable to discipline an employee where there is no evidence of misconduct on their part.

Some evidence, following investigation

If however, following investigation, there is some evidence of misconduct on the employee’s part, then the Investigating Officer should consider the extent of that evidence before recommending formal disciplinary proceedings.

Even if there is little evidence, but still some evidence, it would not be unusual for formal disciplinary proceedings to be commenced – the idea being that, in a formal disciplinary setting, the employee would be given copies of the evidence that the employer intends to rely on, and would be given opportunity to “state their case” in a formal setting.

During the disciplinary proceedings, the “Disciplinary Officer” would then reach an overall conclusion as to:

1. a) whether the evidence available established misconduct on the employees part, and;
2. b) if it does, the appropriate level of disciplinary sanction

This would all be based on the balance of probabilities – which is to say, an employer does not have to demonstrate that the employee definitely ‘committed’ the misconduct, but rather that it is “more likely than not” that they did.

Consequences of disciplining without evidence

Disciplinary hearings can be emotive and often lead to unforeseen sickness absence cases – in a case like the above where an employee believes they haven’t done anything wrong, could feel they are being accused without sufficient evidence, which can to take a toll on their mental health and possibly lead to taking time off.

For an employer, this could mean the hearing is dragged out over a longer period, taking up your team’s time and resource. If your employee then appeals, you’ll have to appoint a new independent appeal officer, re-examine the evidence and review the allegations, again taking up time and resource internally.

The worst-case scenario is that an employer could find themselves defending an employment tribunal. We’re living in a more litigious society than ever before, so the chances of claims are high – employment tribunals are free for employees to pursue and employees are under no obligation to be professionally represented.

Tribunals are time-consuming, use up internal resources and are expensive – whether you’re successful or unsuccessful. You can read about the cost of employment tribunals for employers here.

Need help conducting investigations or advice on misconduct & disciplinaries?

Conducting investigations and managing disciplinary procedures can be emotive and time consuming. If you don’t know where to start, we give businesses personal support from qualified HR advisors to manage workplace compliance and HR challenges with confidence. We can walk you through the correct steps to follow and answer your questions along the way with our fixed-fee unlimited advice line.

Find out how we can support you and your team, speak to an expert today on 01622 47 41 49 or emailing info@primed.co.uk.

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