Workplace Misconduct Investigations: Your Rights as an Employee in the UK

Workplace misconduct investigations are a formal process through which employers gather evidence about alleged employee conduct before deciding whether to take disciplinary action. Employment law in Great Britain does not specify a single prescribed process, but the ACAS Code of Practice on Disciplinary and Grievance Procedures sets the minimum standard that employment tribunals expect employers to follow.

What the investigation phase involves

Before any disciplinary hearing takes place, the employer should carry out a reasonable investigation. This typically involves gathering witness statements, reviewing relevant documents and data, and speaking to the employee concerned. The purpose is to establish the facts, not to determine guilt.

The employee should be informed as soon as practicable that an investigation is underway and what conduct is being examined. Depending on the nature of the allegations, the employer may choose to carry out the investigation without notifying the employee first if evidence might be interfered with, but this is the exception rather than the rule.

Suspension during an investigation

Suspension is not a disciplinary sanction and must not be treated as one. An employer can suspend an employee during an investigation only where there is a genuine reason, such as a risk to other employees, a risk to evidence, or the nature of the allegations making continued presence on site impractical.

Suspension must be paid unless the employment contract explicitly provides for unpaid suspension, which is rare. The employer should review the suspension regularly and lift it as soon as the justification no longer exists. Prolonged or unjustified suspension can itself give rise to a constructive dismissal claim.

The formal hearing

After the investigation, if the employer concludes there is a case to answer, a disciplinary hearing must be held before any sanction is imposed. The employee must be given advance written notice of the hearing, a copy of the evidence gathered, and sufficient time to prepare.

The employee has the right to be accompanied at the hearing by a trade union representative or a fellow worker of their choosing. The companion can address the hearing, put questions on behalf of the employee, and take notes, but cannot answer questions on the employee’s behalf. Refusing to allow a companion is unlawful and can give rise to a separate legal claim.

Outcomes and right of appeal

The employer must consider the outcome carefully and apply any sanction proportionate to the misconduct found. A first instance of minor misconduct typically warrants a written warning. Gross misconduct, such as theft, violence or serious breach of confidentiality, can justify summary dismissal without notice.

The employee must be informed of any sanction in writing and told of their right to appeal. The appeal should be heard by a more senior manager or, where possible, someone not involved in the original investigation or hearing. Refusing or failing to provide an appeal can result in a 25 per cent uplift in any tribunal award.

Employment tribunal claims

If an employee believes a dismissal or other outcome was unfair, they can bring a claim to an employment tribunal. The time limit is 3 months minus 1 day from the effective date of termination, subject to the ACAS Early Conciliation process.

To have the right to claim unfair dismissal at tribunal, an employee generally needs 2 years of qualifying service, with some exceptions for automatically unfair reasons such as whistleblowing, trade union activity, or discrimination.

Frequently asked questions

Do I have to attend a workplace investigation meeting?

Employers can require employees to attend investigation meetings as part of their contractual duties. However, the ACAS Code says the employee should be told in advance what the meeting is about. Investigation meetings are separate from disciplinary hearings, and there is no automatic right to be accompanied at an investigation meeting, only at a formal hearing.

Can I be suspended without pay during a misconduct investigation?

Suspension must be paid unless your contract of employment contains an explicit clause allowing unpaid suspension. Most employment contracts do not include such a clause. Unpaid suspension without contractual authority can amount to an unlawful deduction from wages.

What is the right to be accompanied?

Under the Employment Relations Act 1999, employees have a legal right to be accompanied by a trade union representative or a fellow worker at any formal disciplinary or grievance hearing. The companion can address the hearing and ask questions but cannot answer on the employee’s behalf.

How long does a workplace investigation take?

There is no statutory time limit. The ACAS Code says investigations should be completed without unreasonable delay. In practice, straightforward cases may be concluded within a few weeks. Complex matters involving multiple witnesses or external information can take considerably longer.