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 inform their Senior Manager or Head of Service, and seek advice from Human Resources, who will advise on how the investigation should proceed.
It will be the Senior Manager of the department or Head of Service who is responsible for commissioning the investigatory process and for deciding who will lead on the investigation.
If the manager who made the initial enquiries is not implicated in any way, they will normally be 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 Human Resources 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, specialist advisor's for Children or Vulnerable Adults where abuse is suspected and the Police, where criminal offences are suspected notification under the terms of the Adult Support and Protection (Scotland Act) 2007 to the 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 Senior Manager, the employee and their trade union representative should be kept informed by the Investigating Officer of progress and reasons for potential delays.
Investigatory Interviews will be conducted by the Investigating Officer supported by another manager or HR, as necessary.
Notes should be taken of the interview, and these may form part of any subsequent Investigatory Report or Management Case for Disciplinary. Notes of Investigatory meetings should be signed and dated by all those interviewed. Where possible investigation notes should be emailed to the employee/ witnesses to confirm they are an accurate reflection of what was discussed or for any amendments to be highlighted.
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 further 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.
The Investigating officer will write to the employee who is being investigated, and provide them with a summary of the allegation against them, and invite them to attend an Investigatory Hearing, giving details of the time, date and location of the meeting, and advising them of their right to be accompanied or represented. 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 or represented. The investigation invite letter should be sent to witnesses at least 5 working days prior to the date of the investigation meeting.
Preparing for the Investigatory Interview:
The following provides a checklist to help managers prepare for the investigation.
Strategy - Plan a clear strategy for the investigations, 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).
Previous - Check with Human Resources if the respondent has any current disciplinary warnings on file
Physical Location - In terms of the physical organisation of the Interview, take time to decide the best location and time to convene the interviews. Consider the individual’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 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.
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 subject of the investigation may suggest witnesses who were not identified through other means and this should be carefully explored.
NB Employees of the Board are expected to appear as a witness and participate in investigative interviews when required. In cases where witnesses are reluctant to participate, managers and HR 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 enquiry, in accordance with the Disciplinary Policy and Procedure, and that they have the right to be accompanied or represented at the interview. 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 used 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. Where possible, investigation notes should be emailed.
What to do if a Witnesses Request Anonymity
Such requests are rare and only in exceptional circumstances should a request for witness anonymity be granted. The Investigating Officer will consult with the HR representative 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 HR, 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 witnesses.
If anonymous evidence is to be used, the Investigating Officer should seek to corroborate the evidence and to establish at least one identifiable witness, even if this person is not a direct witness to events, such as a manager who has been provided with information from witnesses. S/he should consider allowing the employee to formulate written questions to be put to the anonymous witness through the Investigating Officer. The witness’s answers can then be examined during the disciplinary process.
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 the tribunal to provide evidence in the proceedings.
The following points can be used as guidance.
Patients or Non NHS Employee as Witnesses
A patient/service user (and/or a patient’s relative) may be involved in a disciplinary investigation because
A patient (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 investigation reveals grounds for disciplinary proceedings, the complaints procedure must cease in relation to any matter which may be the subject of formal disciplinary action and 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 to attend any disciplinary or appeal hearing that follows.
The Investigating Officer should 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 management case which will be submitted to senior 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 investigatory meeting and explain that notes would be taken which would be included in the management case which will be submitted to senior management and 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 management case which will be submitted to senior 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:
Independent Advocacy will have a role if the patient wants in providing support.
Patients should not be named in any correspondence being sent to staff due to patient confidentiality. Initials can be used or the patient can be referred to as, for example, patient X.
If the first language is not English, then interpreter input will be required.
Interviewing the employee regarding conduct allegations:
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 represented 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:
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
Framing an Allegation
It is important to carefully consider the wording of the allegation to ensure accuracy and to enable questions to flow from words used in the allegation. It is best to keep the words as clear as possible, avoid subjective language, and make sure that if there is more than one allegation then they are listed separately. The Manager commissioning the investigation should advise the Investigatory Officer of the specific allegation raised against in the employee, including the time, date and location of the alleged incident, prior to the investigatory process commencing.
“You thought the interventions you had given had stabilised patient McGhee and decided that he was ok and there was no need to involve the Charge Nurse.”
The above statement doesn’t explain what has happened that led to an investigation, it doesn’t anonymise the Patient, and it is a subjective statement where the investigator states within the allegation what they thought happened, i.e. their view of the thought processes of the employee.
A clearer allegation would say:-
“On the night shift of 14th April 2016 within Ward 4, Queen Elizabeth University Hospital, patient PM had a serious relapse and no indication of a decline was reported by his keyworker / named nurse.
Therefore, it is alleged that you neglected to give patient PM proper care by not recording or reporting changes in his condition earlier that evening.”
Professional Organisations such as Nursing Midwifery Council (NMC)/ Health and Care Professions Council (HCPC)/ General Medical Council (GMC) have standard of conduct & professional practice which members are required to adhere to.
When an investigation is underway it is important that the Investigating Officers consider the relevant professional code as well as the Board’s local policies / standard operating procedures. This is important because such staff require to be registered in order to do their job.
Any breach of a professional code is addressed separately by the 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 referring to Protection of Vulnerable Groups (PVG) if necessary.
The management case for the disciplinary hearing would state which part of the code the employee was allegedly in breach of.
For example, in the above allegation the following sentence would be added:-
As such there is an alleged breach of NMC Code parts 26 (You must consult and take advice from colleagues when appropriate) and 42; (You must keep clear and accurate records of the discussions you have, the assessments you make, the treatment and medicines you give and how effective these have been).
Sickness Absence during Investigatory / 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 such as a cold or flu 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 sometimes 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 a 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:
Managers should only consider this course of action where it is reasonable in all the circumstances and subject to advice from a Head of People & Change or People & Change Manager. Managers will take a risk in holding a disciplinary hearing and taking disciplinary action, including dismissal in the absence of the 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 dismisse
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 appropriate manager.
This should be provided to the appropriate manager (and Head of People and Change in cases of gross misconduct) with a verbal summary of the investigation. Face to face explanation of the report enables interactive discussion about the content. 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 appropriate manager. However, the Investigating Officer would make a recommendation as to whether the case should be further considered at a disciplinary hearing, or whether supported improvement is more appropriate.
If the appropriate manager decides that a disciplinary hearing is appropriate then the Investigating Officer will be expected to present the findings of the disciplinary investigation at the hearing in the form of a management case. They will also monitor the evidence provided by the individual and witnesses at the hearing to check if it is consistent with that given to the Investigating Officer during the investigation. Human Resources 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 Investigatory Report, including guidance on the content.
OUTCOME OF INVESTIGATORY REPORT
The appropriate manager who has commissioned the investigation 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 senior 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 senior manager may delegate the supported improvement process to be overseen by an 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 current 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 Statement of Case and the panel would be expected to take the current warning into account in their deliberations.
If the warning is not directly related to the issue under investigation, then they may or may not be relevant. Advice should be sought from an HR Representative.
A situation where someone has a warning for poor attendance and has no previous issues raised re. patient care, then these would be treated as two separate matters, other than perhaps in the course of the investigation / hearing it becoming apparent that the mitigation factors for both issues are the same, and the organisation needs to look at how the employee is being supported.
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.