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Formal Investigation

If, following the initial fact finding, it is the belief of the manager that an alleged act of misconduct has taken place, the manager must in turn inform their manager or Head of Service, and seek advice from the Human Resources Support and Advice Unit on telephone number: 0141 278 2700.  It will be that individual (next in line manager) who would normally be responsible for commissioning the investigatory process and for deciding who will lead the investigation.  The Commissioning Manager should complete terms of reference for the investigation and confirm the allegation in writing to the staff member.

If the manager who made the initial enquiries is not implicated in any way, they will normally be appointed as the Investigating Officer. If the manager has been implicated in any way, or if there are any other factors to be considered, an alternative Investigating Officer should be appointed. There may be instances where, due to the involvement of a whole department, the investigation should be conducted by an investigating team from outside the department. Advice should be sought from the Human Resources Support and Advice Unit on telephone number: 0141 278 2700 to determine if this is necessary.

There may be other considerations to bear in mind according to the circumstances of the case.  For example the Fraud Liaison Officer should be notified immediately if fraud is suspected on telephone number: 0141 201 4879, specialist advisor's for Children where abuse is suspected on telephone number: 0141 451 6605; Police Scotland, where criminal offences are suspected; notification under the terms of the Adult Support and Protection (Scotland Act) 2007 to the appropriate Council Social Work Department in the case of alleged assault and to the Police where criminal offences are suspected.

Investigations should be concluded as soon as possible within a 4 week period, and where possible, the Investigating Officer should be given appropriate time to enable them to complete their report within the timescale.

It is recognised, however, that in very serious and complex cases, the 4 week timescale may be exceeded. In such circumstances, the Commissioning Manager, the employee and their representative should be kept informed by the Investigating Officer of progress and reasons for potential delays.

Investigatory Interviews

Investigatory interviews will be conducted by the Investigating Officer supported by a Human Resources Representative.

Where the allegation relates to an incident that has been witnessed, statements from witnesses should be requested immediately before recollections fade. Therefore this should be before any Investigatory Interviews have taken place, in which case those who have provided statements must be interviewed to confirm and / or clarify the details in the statement.

In other situations it will be sufficient to interview people who are potential witnesses as part of the series of investigatory interviews; typically this would be when the interview is about establishing levels of awareness of the alleged issue, e.g. where it may be about a pattern of behaviour over a period of time.

Notes should be taken of the interview, and these may form part of any subsequent Investigatory Report. Notes of investigatory meetings should be signed and dated by all those interviewed. Where possible investigation notes should be emailed to the employee/ witnesses at their NHS email address to confirm they are an accurate reflection of what was discussed or for any amendments to be highlighted.

The Investigating officer will write to the employee who is subject to investigation, and provide them with a summary of the allegation against them, and invite them to attend an investigatory interview, giving details of the time, date and location of the meeting, and advising of their right to be accompanied at such meetings by a Trade Union/Professional Organisation Representative or a colleague, friend or relative not acting in a legal capacity. The investigation invite letter should be sent to the employee at least 5 working days prior to the date of the investigation meeting. If the employee does not attend as requested, a subsequent letter should be sent outlining the responsibilities of the employee to attend the interview in line with the Disciplinary Policy.

The Investigating Officer will write to the witnesses advising them of their role and what is required of them at the investigatory stage. The letter will invite them to attend an Investigatory interview, giving details of the time, date and location of the meeting, and advising them of their right to be accompanied at such meetings by a Trade Union/Professional Organisation Representative or a colleague, friend or relative not acting in a legal capacity.  The investigation invite letter should be sent to witnesses at least 5 working days prior to the date of the investigation meeting.  Frequently Asked Questions for those requested to attend investigation meetings are available on HR Connect Policy Pages.

Preparing for the Investigatory Interview

The following provides a checklist to help managers prepare for the investigation.

Strategy - Plan a clear strategy for the investigation, including a timescale, and sequence of interviews.

Purpose - Take time to consider the point of the interviews and what you are investigating. Clarify precisely the nature of the complaint/allegation, and plan questions in relation to each specific point.

Documents - Ensure you have obtained relevant documents, e.g. Care Plan, Service Standards, Policy/Procedures, shift patterns, staffing levels, diagram of the unit etc.

Defence - Be prepared for the explanations that might be offered and whether they would form a reasonable defence against the complaint/allegation

Prompt - Take time to make brief notes of the matters you intend to raise to prompt your memory and to make sure you do not leave anything out (Who, when, where, why, what and how).

Physical Location - In terms of the physical location of the interviews, take time to decide the best place and time to convene. Consider the employee’s usual place of work, and if any uncomfortable encounters are likely with colleagues or other individuals who are involved.

Choose a quiet, private, location, out of sight and hearing of others, where the employee/witnesses can be spoken to in confidence. Ensure that there is adequate seating for the attendees. Leave instructions that no one should disturb the meeting including telephone/mobile calls.

Interviewing Witnesses

Witnesses may be identified from a number of sources; the person who has reported the incident provides names of those who were present; the description of the incident may lead the Investigating Officer to conclude that others may have witnessed the incident; and in the course of the investigative interviews other names may be mentioned. The employee subject to investigation may suggest witnesses who were not identified through other means and this should be carefully explored.

  1. When required, employees of the Board are expected to appear as a witness and participate in investigative interviews. In cases where witnesses are reluctant to participate, managers and Human Resources will support and encourage their attendance.

The witness should be invited in writing to an investigatory interview, stating clearly that they have been cited as witnesses in an investigation, in accordance with the Disciplinary Policy and Procedure, and that they have the right to be accompanied at such meetings by a Trade Union/Professional Organisation Representative or a colleague, friend or relative not acting in a legal capacity.  Employees who are called as witnesses should not be accompanied by a colleague who is also due to be interviewed as part of the investigation. The investigation invite letter should be sent to witnesses at least 5 working days prior to the date of the investigation meeting.

At the interview the witness will be asked questions related to the allegation or context, which he or she has witnessed or has experience of. It is important to ensure that the questions are clear, open and not leading.  Witnesses must be advised that the information they provide may be shared with the employee subject to investigation andused as evidence should the issue proceed to a disciplinary hearing and that they may be asked to attend any disciplinary hearing as a witness.

Notes of witness interviews when typed up should be sent to the witnesses to sign and date as an accurate record of the interview. Comments / amendments may be handwritten on the notes. This is not an opportunity to change the account discussed at the investigatory meeting but to amend any inaccuracies.  Where possible, investigation notes should be emailed to the witnesses NHS email address.

What to do if a Witness Requests Anonymity

Such requests are rare and only in exceptional circumstances should a request for witness anonymity be granted. The Investigating Officer will consult with Human Resources before any decision is made as consideration needs to be given to balancing the interests of the parties, the need to protect informants/whistle blowers and the right of the employee to a fair hearing.

While there is no legal requirement to disclose the identity of witnesses, failure to do so undermines the employee’s right to challenge properly the evidence. There is an obligation to undertake a fair disciplinary procedure, which will include attempting to obtain reliable, corroborated evidence. The Investigating Officer, with support from Human Resources, should explore the witness’s reasons for wishing to remain anonymous and decide whether or not it should disregard such evidence or consider it as holding less weight than statements from a named witness.  Frequently Asked Questions are available and can be issued to witnesses to confirm the process and offer reassurance.

The employer should make the witness aware that his or her anonymity cannot be guaranteed. If the matter results in legal proceedings, he or she may be subject to a witness order requiring his or her attendance at a tribunal to provide evidence in the proceedings.

The following points can be used as guidance.

  • Written statements may be edited to remove names and preserve anonymity and be made available to the employee or their representatives.
  • Statements need to be accurate with regard to date, time and place of each incident, the employee's observations and any other relevant details.
  • Is there any corroborative evidence?
  • Has the informant any reason to fabricate evidence?
  • Is the informant's fear genuinely sufficient to not require them to be involved in the disciplinary process further?
  • If at any stage in the disciplinary process the employee raises issues to be put to the informant then the employer should consider an adjournment so the relevant question can be put forward.
  • In cases involving anonymous complainants, careful notes must be taken of the disciplinary hearing.

 Patients or Non NHS Employees as Witnesses

A patient/service user (and/or a patient’s relative) may be involved in a disciplinary investigation because

  1. They were the subject of alleged misconduct
  2. They were possible witness to alleged misconduct,

A patient or patient’s relative, friend or advocate or another carer may raise a complaint or otherwise notify a concern about behaviour or conduct by a staff member.

Where a complaint following initial enquiries reveals grounds for disciplinary proceedings, the complainant will be advised in writing that a disciplinary investigation is underway.

Where possible, the patient/complainant should be actively and positively engaged in the process from the outset and that will mean there is an expectation that they will be treated as a witness and interviewed, invited to make and sign a statement and may be required to attend any disciplinary or appeal hearing that follows however, this would rarely occur.

The Investigating Officer may write to the complainant (when not a current inpatient) offering them an opportunity to attend an investigatory meeting to further discuss their concern(s). The complainant should be advised that any information provided will be included in the investigation report which will be submitted to management and the employee who the allegation has been made against. The investigation invite letter should be sent to the complainant at least 5 working days prior to the date of the investigation meeting and offering the right for the complainant to be accompanied if they so wish. The complainant’s notes from the investigation meeting should be sent to confirm accuracy or highlight any amendments.

Where the complainant is a patient who is still being cared for within NHS premises then an appropriate manager, i.e. Senior Charge Nurse/ Deputy/ Lead Nurse/ Team Lead should privately speak with the patient to ascertain if they would be willing to participate in an investigation and explain that a statement can be provided which would be included in the investigation report which will be submitted to management and may be shared with the employee who the allegation has been made against. In some circumstances it would be sufficient for an appropriate manager, i.e. Senior Charge Nurse/ Deputy/ Lead Nurse/ Team Lead to take a statement from the patient which would then be provided to the Investigating Officer. Again, the patient should be advised that the statement would be included in the investigation report which will be submitted to management and the employee who the allegation has been made against.

A clinical assessment will be made of the patient’s fitness to participate and they will be accorded rights to have a companion in any meetings, as necessary, and suitable adjustments will be made to the process to facilitate the patient’s  involvement with due regard to any physical or mental impairment or vulnerability. In these cases the Responsible Medical Officer (RMO) should be consulted regarding whether the patient can consent and is the capable of taking part.

The RMO will consider:

  • has the patient made similar allegations before (this could be vexatious in nature)
  • What affect would this have on patient’s mental/physical state?
  • Should an appropriate adult /advocacy worker be present during interview?
  • Should the Named Person be involved if the patient is detained and if they have one?
  • Should the RMO/care team be called as a witness to support patient’s fitness to participate?

Independent Advocacy will have a role in providing support if the patient wishes.

Patients should not be named in any correspondence being sent to staff due to patient confidentiality. The patient can be referred to as, for example, patient X.

If the first language is not English, then interpreter input will be required.  Interpreting Services and booking information is detailed on the attached link:

http://www.nhsggc.org.uk/media/223290/Booking%20System%20Interpreter%20Communicators.pdf

Interviewing the Employee

The Investigating Officer will write to the employee inviting them to attend an Investigative Interview, stating clearly the allegations/complaints made against them, that it is in accordance with the Disciplinary Policy and Procedure, and that they have the right to be accompanied by a Trade Union/Professional Organisation Representative or a colleague, friend or relative not acting in a legal capacity at the interview. The individual will be given at least 5 working days notice of an Investigative Interview.

The extent of investigation required will vary from case to case, but what is important is that the investigation is sufficiently detailed to enable the essence of the allegations to be put to the employee and to enable the employee to provide a meaningful response.

Points to consider:

  • The purpose of the interview is to obtain the facts, not to prove the case one way or the other.  The interview should not be aimed at ‘extracting a confession’.  It should seek to elicit the facts as to whether the allegations/complaint has foundation and to discover the reasons behind the employee’s alleged action.
  • Conduct the interview in a professional manner. Try to set the employee at ease (as much as is possible), treat them with courtesy and make them feel comfortable. Introduce those present and explain their role.
  • Explain the purpose of the interview and the reason for taking notes. Ensure notes are as comprehensive as possible, based on the questions and responses. These notes, once written up, signed and dated, will be used as a record of the interview.
  • Confirm the right of representation, if the employee is not accompanied. If the employee wishes to proceed without representation, record this in your notes.
  • Outline the procedure to be followed; check their understanding and that they have access to a copy of the Disciplinary Policy and Procedure on HR Connect.
  • Inform the employee the substance of the complaint/allegation and of what data/documentation backs up the allegations.
  • Inform the employee that you will refer to their statement if they have already provided one, and you may ask them questions about this.
  • Ask the employee to give their version of events in their own words
  • Ask general, open questions (what, where, how etc)
  • Do not lead the employee to answer or respond in the way you wish.
  • Ask if there are reasons/explanations or mitigating circumstances, which should be considered in order to obtain a full statement of their evidence.
  • Consider the reason/explanation put forward by the employee; if the employee admits the allegation, or an explanation is offered, further questions should be asked to test whether the explanation appears to be true.
  • An adjournment can be requested at any time by either party. Managers should always consider this as an opportunity to review the information provided so far,  plan the direction of further questions, check statements already given etc
  • On concluding the interview, inform the employee that further investigations may be necessary and that they will be informed when the investigation is concluded. They should also be told that if any further issues come to light or information needs to be clarified, a further interview may be necessary.
  • Explanations/information provided by the employee may be contradicted by others during the investigation. Therefore, take care in accepting at face value, explanations or information given.  These may often be reinforced, or otherwise, through documentary evidence e.g. rotas, patient records, emails, policies, incident reporting forms, department communication media, etc. Contrary or confirming evidence is of particular importance and will assist the Commissioning Manager in deciding if a case warrants going forward to a disciplinary hearing.
  • If additional allegations come to light during the investigation, a template letter is available to ensure this is appropriately included.
  • The Investigating Officer will ensure the notes of the interview are typed up and sent to the employee to be signed and dated, confirming the accuracy of the note. Any amendments to the content should be added to the document in the employee’s handwriting.   Amendments require to be initialled by the employee.  However, this is not an opportunity to re-write what was stated at the meeting or to add additional information not previously discussed.
  •  Explain that a report of the investigation findings will be compiled for the manager who commissioned the investigation. The Commissioning Manager will decide what, if any further action will be taken, which may include convening a disciplinary hearing.
  • If the employee is suspended, the Commissioning Manager needs to confirm that the suspension and rules pertaining to it will continue and will write to the employee confirming this as soon as possible after the investigation is concluded.
  • It is for the manager commissioning the investigation to decide its outcome; this will be based on the facts provided by the Investigating Officer, the employee and their representatives.

It may also be useful to consider some of the following Do’s and Don’ts. These may appear to be common sense, but will also serve as a useful reminder of what is expected of the Investigating Officer in this formal situation

Suggested Do’s

  • Do explain the purpose and format for the interview and the role of the Investigating Officer.
  • Do use the employee and witness statements for discussion at the interview.
  • Do be open minded and non judgmental as this is fact finding.
  • Do be professional in your approach and be careful about your language and behaviour.
  • Do allow the employee to offer explanations.
  • Do state the complaint/allegation as briefly and as concisely as possible and ensure the individual understands the process being followed.
  • Do use open probing questions and encourage the employee to talk.
  • Do think one step ahead to what explanations may be offered.
  • Do maintain eye contact with the employee.
  • Do refer to supporting documentation, e.g. Care Plan, Service Standards, Policy/Procedures etc
  • Do try to avoid tension in the body posture, facial expressions and voice.
  • Do be prepared for obstacles, e.g. refusal to co-operate, emotional reactions etc.
  • Do consider a brief adjournment if the meeting becomes too heated/emotional or if you feel the employee requires to gain composure or to allow either party to review progress
  • Do seek confirmation and clarification of any points that are unclear
  • Do be thorough and ensure all relevant lines of enquiry are pursued
  • Do avoid physical contact.
  • Do ensure comprehensive notes of the interview are taken and transcribed as soon as possible after the interview and send these notes to the employee to sign and date as accurate.
  • Do explain what happens next regarding the process.
  • Do reconfirm they are receiving appropriate support.

Suggested Don’ts:

  • Do not get involved in arguments.
  • Do not breach confidentiality.
  • Do not humiliate, or make personal remarks.
  • Do not raise your voice.
  • Do not use sarcasm.
  • Do not joke. The seriousness of the procedure should be maintained throughout.
  • Do not have preconceived ideas of the outcome of the investigation or jump to conclusions
  • Do not misrepresent facts

Framing an Allegation

It is important to carefully consider the wording of the allegation to ensure accuracy and clarity. The allegation should be as clear as possible, avoid subjective language, and make sure that if there is more than one allegation that they are listed separately. The manager commissioning the investigation should detail the allegation on the terms of reference for the investigation; write to the employee to advise them of the allegation/s and similarly advise the Investigating Officer prior to the investigatory process commencing.

REGULATORY BODIES

Professional organisations such as Nursing Midwifery Council (NMC); Health and Care Professions Council (HCPC); General Medical Council (GMC) have standards of conduct & professional practice which members are required to adhere to.  This list is an example and not exhaustive.

When an investigation is underway it is important that the Investigating Officer considers the relevant professional code as well as the Board’s local policies / standard operating procedures. This is important because some staff require to be registered in order to do their job.

Any breach of a professional code is addressed separately by the appropriate professional body; i.e. a report of any breach would typically go to the professional body following a disciplinary hearing. Consideration should also be given to referral to Protection of Vulnerable Groups (PVG) if necessary.

The management statement of case for the disciplinary hearing cannot state which part of the appropriate code the employee has allegedly breached as that is matter for consideration by their professional body.  Emphasis should therefore be on breaches of the Board’s policies and procedures.

SICKNESS ABSENCE DURING INVESTIGATION / DISCIPLINARY PROCESSES

It is not uncommon during disciplinary proceedings for the employee in question to commence sick leave, whether at the outset of the investigation or during the process itself. The key is for the employer to manage the situation carefully to avoid any suggestion that it is acting unfairly, while at the same time keeping the disciplinary process intact until it reaches a conclusion.

If an employee commence sick leave either when they are first informed of the disciplinary allegation or at any point during the investigation, the employer should continue with the disciplinary investigation so far as possible in the absence of the employee. This means that the Investigating Officer should interview and take statements from any other witnesses to the disciplinary matter, before memories start to fade.

Relevant documents should be collected and any other enquiries followed up, and the investigation should be completed as far as possible, except for any enquiries that need to be made of the employee in question.

Where the employee's sickness absence is due to a minor or short-term ill health condition this is unlikely to cause great difficulty. The Investigating Officer should simply await the employee's return from sick leave and continue with the disciplinary process on their return.

Where the employee's absence seems likely to be more prolonged, the Investigating Officer should make a management referral to Occupational Health to determine whether or not the employee is fit to take part in an investigatory / disciplinary process, notwithstanding their ill health.   Note that where the Investigating Officer is not the employee’s line manager then their line manager should do the referral.   The employee should be advised at this point that a referral is being made to OH and will be shared with the Investigatory Officer.

The Investigating Officer may be able to facilitate a meeting by offering a neutral venue.

If the employee is likely to be off sick on a long-term basis and is not fit enough to undergo any part of the investigatory / disciplinary process in the meantime, the Investigating Officer will on occasion have no alternative but to place the investigatory/disciplinary proceedings on hold and continue managing the situation as sickness absence. In these circumstances, the employee should be informed that the investigatory/disciplinary process has been placed on hold pending an indication of their fitness to proceed.

However, where the postponement of the investigatory/disciplinary proceedings is likely to cause particular problems, the Investigating Officer may wish to consider inviting the employee to make written submissions rather than attending an investigatory/disciplinary hearing in person. The Investigating Officer should write to the employee suggesting such an option, pointing out that it is in the interests of all the parties to settle the matter promptly, in order to resolve the situation and move forward.

Relevant factors in terms of deciding whether or not it is fair to proceed with the disciplinary process without the employee being present would include:

  • the importance of dealing with the disciplinary matter promptly;
  • how long the employee has been off sick and whether or not there is any likelihood of a return to work in the near future; and
  • Whether or not a long delay in dealing with the matter might be to the detriment of the organisation.

Managers should only consider this course of action where it is reasonable in all the circumstances and subject to advice from a People & Change Manager.  Managers should consider the risk in holding a disciplinary hearing and taking disciplinary action, including dismissal in the absence of an employee when they are off sick.

An Appeal Hearing or Employment Tribunal may find that the employer has not followed a fair procedure and that the dismissal is therefore unfair. The Employment Tribunal may consider that if the employee had been given the chance to answer the disciplinary charges he or she would not have been dismissed.

INVESTIGATORY REPORT

The Investigating Officer must produce a written report as soon as possible, detailing the chronology of events and facts discovered by the investigation, with attachments of records of interviews, written statements and copies of all relevant documents.   On the basis of this, the Investigating Officer should decide if there is any substance to the allegation and pass their recommendations to the Commissioning Manager and a People and Change Manager in cases of gross misconduct. The report should be factual, balanced, accurate, objective, comprehensive and relevant. It will not usually include recommendations as to the disciplinary action to take, as the responsibility for that decision rests with the Commissioning Manager. However, the Investigating Officer would make a recommendation as to whether the case should be considered at a disciplinary hearing, or whether supported improvement is more appropriate.

If the Commissioning Manager decides that a disciplinary hearing is appropriate then the Investigating Officer will be expected to present the findings of the investigation at the hearing in the form of a management statement of case. The Investigating Officer should monitor the evidence provided by the employee and witnesses at the hearing to check if it is consistent with that given to the Investigating Officer during the investigation. Human Resources Representatives should not be asked to present a case unless it has complex employment law factors e.g. equal pay.

The following shows the structure of an Investigation Report, including guidance on the content.

  1. The Model Investigation Report/Management Statement of Case has been produced to assist Investigating Officers in compiling their report in a standard format.  Where the matter proceeds to a Disciplinary Hearing, the Investigatory Report is presented as Management’s Statement of Case. 
  2. It is important to ensure that the layout of the report is logical and easy for the panel to follow in order that they may fully consider all of the factors pertinent to the case.
  3. Further advice, guidance and support may be sought from the designated Human Resources representative.

OUTCOME OF INVESTIGATORY REPORT

The Commissioning Manager should ensure that the employee under investigation is informed of the outcome as soon as possible; i.e. no further action, management counselling, supported improvement, disciplinary hearing. 

This would normally be communicated by letter, although in some circumstances; e.g. where supported improvement is being recommended the Commissioning Manager may chose to meet with the employee face to face to set out their expectations of the supported improvement programme and hand over the outcome letter. Alternatively, the Commissioning Manager may delegate the supported improvement process to be overseen by another appropriate manager which would be confirmed in writing to the employee as soon as possible along with the areas to be addressed. The appropriate manager would then contact the employee directly to arrange a meeting to discuss and agree the supported improvement action plan and timescales.

Where the matter is proceeding to a disciplinary hearing, it is good practice for the employee to be advised that this is the outcome in writing, particularly if a date for the disciplinary hearing has yet to be convened.

If the employee is suspended, it is important to inform the employee of the suspension remaining or being lifted prior to the disciplinary hearing or formal meeting.

DEALING WITH OTHER LIVE DISCIPLINARY WARNINGS

If the employee under investigation has a warning for a similar issue e.g. timekeeping / attendance / medication error, then the current warning is directly relevant. If the case is proceeding to a disciplinary, the Investigating Officer would refer to the current warning and supported actions in place within the Management Statement of Case and the panel may take the current warning into account in their deliberations.  Advice should be sought from a Human Resources Representative.

There are however, situations where the current warning may not be for the same type of allegation; however, there are commonalities between the two issues that show, for example, poor professional judgement. In this situation, where there is a current warning for misconduct and a second misconduct issue under investigation, then, after full consideration of all the facts and issues put forward by both parties, it would be appropriate for the panel to consider these as linked issues.