Pharmaceutical Technologist - March 2008 - (Page 17)

Conducting internal investigations relevant evidence or if they are implicated. Hopefully, this will persuade employees with information to come forward. If they do not, failure to comply with such a reasonable and lawful instruction could, in itself, be grounds for disciplinary action against the employee, up to, and including, dismissal. Interviews A requirement to attend an interview and the provision of accurate responses to questions will constitute reasonable instructions for the purposes of English law, and failure by an employee to comply could, again, be grounds for disciplinary action. Companies should consider whether they have policies governing the manner in which interviews with witnesses to an internal investigation are managed. If so, these policies should be observed, unless exceptional circumstances apply. An employer should ensure the interview is conducted reasonably and fairly, and not in an oppressive manner. All employers are bound by the implied duty of trust and confidence, and any breach of this duty could lead to the employee resigning and claiming constructive dismissal. In the UK, employers should also have regard to the statutory dismissal and disciplinary procedures introduced in 2004. Provided that the interview is an investigatory meeting, the employee does not have the right to be accompanied. However, an employee may request that a friend or colleague accompany them to investigatory meetings and, while there is no legal obligation on the company to agree, such a request should be considered. On one hand, the presence of a companion may help the employee to relax and cooperate more effectively, whereas, on the other hand, a companion may adversely affect the dynamics of the interview by being obstructive and interrupting. If the meeting constitutes a disciplinary hearing, under the statutory procedures, the employee has the right to be accompanied by a work colleague or trade union representative. Failure to comply will automatically mean that any subsequent dismissal is unfair. Employees may sometimes request to be legally represented. There is no obligation to agree, and many employers consider the presence of a lawyer as inhibiting the fact finding and/or disciplinary process. Employees (and any companion) should be instructed that the investigation/disciplinary hearing is confidential and that to discuss it with his/her colleagues could undermine the process and be grounds for disciplinary action. Even if the relevant employee’s contract does not contain the right for the employers to suspend, the Advisory, Conciliation and Arbitration Service (UK) guidance to statutory dismissal and disciplinary procedures states that in cases of gross misconduct, where relationships have broken down or there are risks to an employer’s property or responsibilities to other parties, consideration should be given to suspension on full pay while an unhindered investigation is conducted. An employer should ensure the interview is conducted reasonably and fairly, and not in an oppressive manner. Suspending employees Employment contracts commonly contain a provision allowing employers to suspend staff on full pay and benefits for the purpose of conducting an investigation in the event that they are suspected of wrongdoing. Where an employer does decide to suspend employees pending investigation, and possible disciplinary action, it should make clear that such a step is not, in itself, a disciplinary sanction, and should not suspend an employee for any longer than is necessary to investigate and complete any disciplinary process. To do otherwise runs the risk that the employee may treat himself as constructively dismissed. Dismissal If the investigation concludes that an employee is guilty of misconduct, it may be necessary to consider discipline or dismissal. Again, employers should ensure that any internal disciplinary procedures are complied with. Employers must also act in accordance with the statutory dismissal and disciplinary procedures. In the context of a dismissal, failure to do so will mean that the employee will automatically be classified as unfairly dismissed. PT Philip Davies is an associate in the European employment group of Covington & Burling LLP (UK). Key points ● ● ● ● ● Ensure that any search of an employee’s computer is a proportionate response to the threat faced by the company and complies with any data protection policies. Consider notifying employees in the implicated group or division of the investigation and instructing them to volunteer any relevant evidence. Comply with any internal procedures when conducting investigations, such as when interviewing employees. Don’t conduct interviews in an oppressive or unreasonable manner — to do so may give an employee grounds to resign and claim unfair dismissal. Comply with statutory dismissal and disciplinary procedures when conducting disciplinary proceedings resulting from the investigation. www.ptemagazine.com 17 http://www.ptemagazine.com

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Pharmaceutical Technologist - March 2008 Contents News Morpheus Market Watch E-procurement Means Lean Procurement The Rational Enquirer Simulating for Success Q&A

Pharmaceutical Technologist - March 2008

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