Employee conduct: NHSScotland PIN policy

Annex B: Investigation - How to Get it Right

1 When to Investigate?

While this section relates to investigation of allegations of misconduct, internal investigations may also require to be carried out in other circumstances (i.e. in relation to grievances, dignity at work complaints or matters of capability). While the corresponding locally developed policies which cover these other areas should detail the procedure to be following in undertaking any necessary investigation, the following general principles will apply in all cases.

2 Why Investigate?

A fair, consistent, impartial and thorough investigation will ensure that the facts can be established and will allow managers to make appropriate informed decisions about the next steps.

3 Who Investigates?

It is normal for the employee's manager to investigate allegations (or nominate a representative to act as an investigating officer where the manager is implicated or involved in any aspect of the allegation). In the interests of natural justice the same person conducting the investigation cannot hear the disciplinary complaint against the employee if it proceeds to a formal hearing.

The investigating officer will seek to compile sufficient information and evidence for a management decision to be reached on whether a disciplinary hearing is necessary (i.e. sufficient supporting evidence regarding the allegations). The investigation is likely to include interviews with the key people involved and the gathering of written statements and other relevant material.

4 How to Investigate?

4. 1 Before you start, identify:

• Details of the precise issue to be investigated (e.g. details of allegations made etc.);
• Suggested methodology for conducting the investigation (e.g. identification of initial witnesses, copies of relevant policy under which investigation is being held);
• For what purpose and by whom any subsequent investigation report produced would be used; and
• Techniques, such as root cause analysis, which might be helpful.

4.2 Investigatory Interviews

• As part of the investigation, it will be necessary to interview the individual who is the subject of the investigation, as well as any potential witnesses.
• It may be necessary to carry out additional subsequent interviews in order to clarify details where, for example, conflicting accounts are received or where new information comes to light in the course of the investigation.
• The order in which investigatory interviews take place should, where possible, follow a logical order, in order to minimise the likely need to undertake such additional subsequent interviews. However, it is appreciated that this may not always be possible and that, indeed, further witnesses may be identified during the course of the investigation.
• Individuals should receive written notice of a request to attend an investigatory interview, which should set out the purpose of the interview and confirm the individual's right to be accompanied, and include a copy of the Board's local policy developed in line with this PIN policy.
• In the case of the individual who is the subject of the investigation, it is important that they are made aware of the allegations being investigated at an early stage (although it is recognised that these may change during the course of the investigation).
• The investigating officer should identify what needs to be established from each investigatory interview and prepare accordingly.
• Those being interviewed should be encouraged to recall their version of events in their own words, with the use of open, rather than closed, questions being used to gain information, clarify the issues and to check understanding of what has been said.
• In the case of witnesses, they should be informed that their statement may be shared with the individual who is the subject of the investigation, that the statement may be used if further action is taken and that they may be required to give evidence if matters subsequently proceed to a disciplinary hearing. If a witness refuses to participate it is important that the investigating officer meets with them to understand their reasons and to discuss any means by which such refusal might be overcome.
• The investigating officer should make full notes of the investigatory meeting. While those interviewed may subsequently be invited to sign and date those notes as an accurate reflection of the discussion, there is no obligation on the part of interviewees to do so. However, in such cases, a separate signed and dated written statement would be required from the individual.

4.3 Gathering Other Evidence

• Do not just rely on witness statements, as this may result in other crucial evidence being overlooked.
• Files, documents, computer records, policy documents and training records can all be produced as evidence where relevant.
• If any evidence is likely to perish or be removed, gather it as a priority.

5 Preparing the Investigation Report

5.1 Review and evaluate the evidence. Particular attention should be given to the following:

• Direct witness evidence (which will usually be stronger than indirect information relating to the incident/allegation);
• Evidence which is inconsistent with documents produced at the time;
• Evidence which is vague, omits significant details or contains inherent contradictions; and
• Any bias or influence individual witnesses may have.

5.2 The Report

The report should be structured in a logical format.

• Introduction - a brief introduction to the report clarifying the allegations/incidents which have been investigated, details of the person against whom the allegation has been made and the name of the investigating officer (and the member of the HR department who supported the investigating officer, if applicable).
• Methodology - detail the process of the investigation including a list of the people interviewed, specifying if written statements/notes from meetings have been taken, details of Board policies reviewed and details of any other activities undertaken as part of the investigation.
• Findings - detail the findings from the investigation, including the facts and evidence presented; any inconsistencies found, with explanations where applicable; any mitigating circumstances; and any risks identified. Where information from written statements/notes from meetings is cited, note must be made of the relevant appendices where these can be found.
• Conclusions - this section should include the conclusions drawn by the investigating officer.
• Appendices - all written statements/notes from meetings, copies of correspondence, policies cited during the report and any other relevant information should be included.