Procedural fairness in the workplace

Investigations conducted by employers which may lead to the dismissal of an employee must be conducted in a reasonable and fair manner.

Even if an employee openly admits to misconduct, further investigation may still be required, for example if the employee claims that similar misconduct by others is widespread, and/or it is condoned by line managers.

Common procedural failings include:

  • not following the organisation’s own investigation policy/procedure closely enough
  • not collecting all relevant evidence, eg interviewing other employees
  • using an investigator who is not perceived as impartial, eg a manager who has a vested interest in the outcome, or who needs to defend his/her own position
  • not giving an employee an opportunity to respond to all allegations against him/her
  • not allowing the employee to have a support person present at interviews
  • if the organisation has provision for appeals against disciplinary decisions, not choosing a suitable person to review the case. This should be a more senior manager who is not directly involved with the parties.

Note that, as a general rule, a procedural shortcoming needs to have made a difference to the final decision that was made.