Investigating Misconduct

February 2012

The case of British Home Stores Limited v Burchell [1978] IRLR 379 established that when dismissing an employee for misconduct the employer must show that, at the time of dismissal, it honestly believed the employee was guilty of the relevant offence, it had reasonable grounds for holding this belief and this came from a reasonable investigation of the incident(s).  Therefore, any employer considering taking action against an employee for misconduct should normally carry out an investigation of the facts before acting on its suspicions. 

Ideally the investigation should be conducted by someone who is not a key witness and who will not conduct any subsequent disciplinary hearing.  Interviews with other employees who are witnesses should be conducted in private and treated confidentially, and the employer will have to decide whether it is necessary to reveal the name of the employee suspected of wrong-doing to the witnesses.  In view of the requirement to conduct a fair hearing, it may not be possible to guarantee anonymity to witnesses, particularly since they may be required to give evidence in legal proceedings in any event. 

If it is necessary to search the work email account of an employee suspected of misconduct, the employer is required to comply with its obligations under the Data Protection Act 1998, which requires that personal data is processed fairly and lawfully.  Guidance recommends that any monitoring of employees’ emails be done for a clear purpose only and be justified by the benefits to be achieved.  It is wise, therefore, for an employer to have an email policy in place that informs employees of the circumstances in which monitoring may take place, why the information is being obtained, how the information will be used and who the information will be disclosed to.  Any emails marked as ‘personal’ or ‘private’, however, should only be reviewed as a last resort, ideally after having met with the employee in question and received their permission to do so.

Employers should not attempt to hack into private email accounts to obtain evidence since this is likely to amount to a criminal offence under the Computer Misuse Act 1990. The employer may also be unable to use the evidence obtained in any subsequent proceedings.  The same applies to hacking into password protected areas of social networking sites such as Facebook.  Any public comments on social networking sites or blogs can, however, be used. 

When deciding whether to suspend an employee whilst investigations are on-going employers should consider whether they have reasonable grounds for such suspension.  Employers should also consider the potential impact of any suspension on the employee’s professional standing, including whether the employee’s occupation involves a specific skill that has to be practiced on a regular basis, whether it will be possible to re-integrate the employee back into the workforce following a period of suspension, and whether there are any alternatives.  If, having considered these points, an employer decides to suspend an employee pending an investigation, this should be for the shortest time possible and should be reviewed on a regular basis.  Unless there is a clear contractual right for the employer to suspend an employee suspected of misconduct without pay, the employee must continue to be paid during the period of suspension.

Parrott & Coales LLP can advise you on all aspects of employment law, including misconduct dismissals. We can also prepare employment documentation for you, including contracts of employment and policies. If you would like to discuss how we may be able to help you, please contact our Employment Law Department on 01296 318500.