Aim

To provide a clear process to undertake full and thorough investigations in a timely manner to establish facts.

To support informed and transparent decision-making for cases being considered under NHSScotland Workforce Policies.

Scope

This policy applies to all employees, with the exception of medical and some dental staff, in relation to their professional conduct or competence to which the relevant policy applies. It also applies to workers such as bank, agency, and sessional workers. References to employees should be taken to apply to workers unless otherwise stated.

It applies where an investigation is required under NHSScotland employers’ Conduct, Bullying and Harassment, and Grievance policies and the Capability Policy where it is not clear if it is a conduct or capability matter.

This policy is compliant with current legislation and will meet the aims of the Public Sector Equality Duty of the Equality Act 2010.

Definitions

The investigating manager is the individual who has been commissioned to undertake the investigation.

The manager will normally be the direct line manager of the employee unless there is a conflict of interest. For example, they are a witness, or they are the subject of a bullying and harassment claim.

Physical evidence includes items such as case notes, logbooks, invoices or computer equipment.

Roles and responsibilities

There is a range of standard expectations on all parties, including HR, trade union representatives and occupational health, which underpins all policies. Read more about standard roles and responsibilities. In addition, the following specific responsibilities apply to this policy.

Manager of employee under investigation

The manager should:

• Make themselves available for those who are involved in an investigation.
• Advise employee at the earliest opportunity when they are subject to investigation and why this is the case.
• Keep employee fully informed on progress relating to the investigation.
• Feedback the outcome of the investigation to the employee and offer appropriate support.

Employee

The employee should:

• Actively participate in the process to avoid delays.
• Be open and honest with the investigation team to ensure facts are established.
• Consider the position of any complainants and witnesses as well as their own.

Procedure

The procedure for undertaking workforce policy investigations is shown in the flowchart.

Other resources are also available to support employees participating in investigations:

• Guide for employees
• Guide for witnesses

Find out more about support for employees and witnesses in the employee support section.

Pre-investigation stage

When the manager identifies or is made aware of a concern or incident, they must take immediate action to ensure the safety of persons, the environment, and physical evidence.

The manager should assess the risk to determine whether alteration to duties or suspension is required. Read the Guide to suspension for the Conduct Policy. They should also consider the requirement for referral to external agencies, such as the Counter Fraud Service, regulatory bodies, child protection or adult support and protection networks, and Disclosure Scotland. Find out more in the criteria for referral to external agencies and the Guide to counter Fraud Services.

The manager should meet with the employee to advise that a concern has been raised and an investigation is being arranged and to offer support. The outcome of the meeting will be confirmed in writing within 7 calendar days, using the standard Investigation notification letter. Where possible, this communication should advise who will be undertaking the investigation.

Where it has been determined that alteration to duties or suspension is required, the employee will be informed of this at the meeting in line with the guidance contained in the Guide to suspension. In such cases, the outcome of the meeting will be confirmed in writing, using the Confirmation of suspension letter template, within 4 calendar days in line with the suspension guidance.

The manager will inform witnesses that they may be required to participate in an investigation and will request statements using the Statement template. For more information, read the Guide for witnesses.

An investigation team will be identified comprising an investigating manager and an HR representative. In cases where there are clinical or technical issues outside the investigating manager’s area of expertise, an appropriate professional or technical adviser should be added to the team. If the investigation relates to an employee in training, an educational or deanery adviser should be considered.

In identifying the team to undertake the investigation, the manager should consider the complexity, nature and scale of the case. This will determine the level of training and skill required of the investigating manager and the time commitment to undertake the investigation in a timely manner. Taking into account these factors, it may be appropriate for the manager to undertake the investigating manager role unless a conflict of interest has been identified.

Investigation team planning

The investigation team will meet to plan the investigation. For more information, read the Investigation planning document.

In bullying and harassment or grievance investigations, the investigating manager will write to the complainant, using the standard Complainant investigation initiation letter template, to confirm who the investigation team are and arrange a mutually agreeable date to meet. At the same time, they will write to the employee who is the subject of a bullying and harassment complaint using the Bullying and harassment initial meeting invite letter. The letter confirms they have been appointed to undertake the investigation and offers to meet with the individual to hear their initial response to the allegations, making clear full allegations and information will not be available at this stage. On this basis, a further investigation meeting will be necessary. The employee will be advised that they can provide a statement or other relevant information for consideration by the investigation team. There is no requirement for the employee under investigation to participate in a meeting at this stage.

In cases where the outcome potentially falls within conduct or capability, the investigating manager will write to the individual under investigation, using the Conduct initial meeting invite letter, to confirm who the investigation team are and arrange a mutually agreeable date to meet for an initial meeting regarding the allegations. The employee will be advised that they can provide a statement or other relevant information for consideration by the investigation team.

Following the meeting, the investigating manager will provide a provisional timescale for the completion of the investigation. This will depend on the need for witness meetings and any further meetings with the employee to allow them to respond to the full documentation relating to the investigation.

The investigating manager will write to any witnesses, using the standard Witness investigation initiation letter template, to confirm who the investigation team are and arrange a mutually agreeable date to meet.

Investigation

The investigation team will collate and consider relevant documentation, including policies, procedures and protocols. Any patient and other confidential data circulated must be anonymised. Original unredacted documents should be available for reference within the confines of the investigation meeting as appropriate.

Witness investigation meetings should be held. Meetings can be recorded to support the preparation of notes where all parties have agreed in advance. Notes of the meetings should be prepared and sent to the witnesses for confirmation of the content. Unless otherwise agreed, notes should be returned within 14 calendar days using the Investigation meeting notes covering letter template. Notes should be signed or attached to the covering email where they have been returned electronically. Notes not returned within this period will be considered a correct record.

An investigation meeting will be held with the employee under investigation. The employee will be written to outlining the allegations under investigation and will be provided with all documentation which applies to the allegations. The correspondence will be issued at least calendar 14 days in advance of the meeting, using the Investigation meeting invite letter.

Meetings can be recorded to support the preparation of notes where all parties have agreed in advance. Notes of the meeting should be prepared and sent to the employee for confirmation of the content. New evidence or further explanation not stated at the meeting cannot be added to the notes at this stage. Where the note cannot be agreed upon, the employee’s version will be appended to the investigation team’s record for any further process. Unless otherwise agreed, notes should be returned within 14 calendar days using the Investigation meeting notes covering letter. Notes should be signed or attached to the covering email where they have been returned electronically. Notes not returned within this period will be considered a correct record.

The investigation team will assess whether further witness meetings are required. If so, this further evidence will then be shared with the employee under investigation for comment. Where there is extensive additional information, this will be in a reconvened investigation meeting.

If, during the investigation, new related information comes to light leading to changes to the concerns or allegations, these will be confirmed in writing to the employee. Where the changes are significant, a further opportunity to consider these at interview will be provided.

Where new allegations arise in the course of the investigation, discussion should take place with the employee and their representative to agree whether these are investigated within the ongoing investigation or whether they should be considered separately.

In conduct cases, full disclosure of documentation at the disciplinary hearing will remedy any justifiable failure to share all evidence at the investigatory meeting, and therefore, the disciplinary hearing should progress.

Factual findings of investigation

The investigating manager will consider the evidence and prepare the investigation report for the manager using the Investigation report template. Consideration should be given to:

• the evidence provided by the employee under investigation and any witnesses
• the physical evidence, if applicable
• conflicting evidence
• why the investigating manager has accepted a particular line of evidence
• reasons for the recommendations and findings

In relation to grievance, the investigation report will be referred back to the person or panel that commissioned it.

There are 3 potential findings following the investigation:

• the allegation is not upheld
• the evidence and / or nature of the complaint justifies learning outcomes which may fall within the Capability Policy
• the evidence justifies referral to a formal panel under the relevant NHSScotland Workforce Policy

In addition to the above findings, regarding the specific concerns raised and recommended next steps, the investigating manager may identify broader concerns. For example, these could be management issues or system failures, or the need for the application of other policies to support the employee, such as the substance misuse policy. These findings should be included within the investigation report so that the necessary action or support, or both, is implemented.

The investigation report should be submitted within 21 calendar days of the completion of the investigation. The investigation team should submit their report to the manager stating their recommendations for any further action under NHSScotland Workforce Policies.

The manager will meet with the employee as soon as possible after receipt of the report to confirm the findings of the investigation and any further action to be taken under NHSScotland Workforce Policies and to offer appropriate support. This feedback will be confirmed in writing within 7 calendar days and will reflect the requirements of the relevant policy:

• NHSScotland Workforce Bullying and Harassment Policy
• NHSScotland Workforce Conduct Policy
• NHSScotland Workforce Capability Policy
• NHSScotland Workforce Grievance Policy

Grievances or bullying and harassment complaints

Where an employee raises a grievance, bullying and harassment complaint or counter-complaint during the investigation process, the investigation may be temporarily suspended in order to deal with the grievance or complaint. Where the grievance or complaint and matters under investigation are related, it may be appropriate to deal with both issues concurrently.