Investigation into a suspected urgent cause for dismissal

Why is an investigation often necessary?

Where an employer suspects the existence of an urgent cause for dismissal, this does not automatically mean that a summary dismissal must follow immediately. In many situations, an investigation is required to establish what actually occurred.

An employer that acts too hastily risks subsequently discovering that the facts differ from those initially assumed. As a result, the summary dismissal may be annulled in court proceedings. Before taking a measure as far-reaching as a summary dismissal, an employer must have a sufficiently clear understanding of the relevant facts.

An investigation therefore serves several purposes. It provides an opportunity to establish the facts, gather evidence, interview those involved, and assess any alternative explanations. It may also be necessary to determine whether the conduct in question genuinely justifies a summary dismissal. A careful investigation is not incompatible with the requirement to act without undue delay. On the contrary, in many cases it constitutes a necessary step towards reaching a well-informed decision.

What may an investigation involve, and what limits apply?

The nature and scope of an investigation depend on the allegations concerned. Not every report requires an extensive factual inquiry, but generally speaking, the more serious the potential consequences and the more complex the matter, the more extensive the investigation will need to be.

An investigation will often begin with the collection of information within the organisation, such as discussions with managers, colleagues, or other relevant individuals, and a review of relevant documents, including expense claims, timesheets, access records, or financial administration. Digital information, such as business emails, chat messages, and system logs, may also play an important role. In addition, the employee concerned will often be interviewed. Although the principle of hearing both sides is not a strict legal requirement, it is generally regarded in practice as an important element of a careful investigation.

In complex or sensitive matters, employers sometimes engage an external investigation firm or corporate investigations specialists. Whilst this may contribute to an independent investigation, it is also an intrusive measure. Case law demonstrates that such investigative methods should not be deployed lightly. Relevant considerations include the seriousness of the suspicion, the gravity of the alleged misconduct, and whether less intrusive means of investigation are available.

Throughout any investigation, employees' privacy rights must be respected. The investigation must pursue a legitimate aim, be limited to relevant information, and remain proportionate to the suspicions involved. This means, for example, that an employer may not conduct unrestricted searches of employee communications or engage in prolonged surveillance without a concrete justification.

The key principle is that an investigation must be focused, careful, and proportionate. The more intrusive the investigative measure, the stronger the employer's justification for its use must be. An overly intrusive investigation may not only give rise to disputes regarding the lawfulness of the investigation itself but may, in some circumstances, also result in employer liability or an award of equitable compensation to the employee.

How much time does an employer have to conduct an investigation?

The scope for conducting an investigation is not unlimited. During the investigation, the employer must act diligently and actively manage the process. Courts assess not only the overall duration of the investigation, but more importantly whether the employer took sufficient and timely steps throughout the investigative process.

The time available for conducting an investigation depends on the circumstances of the particular case. Relevant factors include the nature and seriousness of the allegations, the scope and complexity of the investigation, the volume of information to be reviewed, and the availability of relevant individuals. A relatively straightforward breach of workplace rules will generally require a less extensive and more expeditious investigation than a complex fraud matter involving the review of large volumes of documents, emails, or other electronic data.

Even where an external investigation firm is engaged, responsibility for the progress and timely completion of the investigation remains with the employer. The involvement of third parties does not, in itself, justify delaying a decision on summary dismissal.

The requirement to act without delay is particularly at risk where an employer fails to take concrete investigative steps following the initial allegations, allows the investigation to stagnate unnecessarily, or postpones a decision after the relevant facts have already become known. Accordingly, the decisive question is not how long an investigation may last in absolute terms, but whether the employer has made proper use of the time available to conduct the necessary investigative steps and has pursued the investigation with sufficient diligence throughout.

Practical considerations for employers

Where there is a suspicion of an urgent cause, the following points may assist employers in conducting an investigation both carefully and expeditiously:

• Record the reason for initiating the investigation and describe the suspicion as specifically as possible.
• Formulate a clear investigation question in advance and identify which facts need to be established.
• Document why particular investigative methods are considered necessary.
• Maintain careful records of all investigative steps taken.
• Actively monitor the progress of the investigation.
• Apply the principle of hearing both sides where appropriate.
• Ensure compliance with privacy legislation and internal policies.
• Seek legal advice at an early stage in complex or sensitive matters.
• Once the investigation has been completed, make a decision as promptly as possible.

Conclusion

Where an employer suspects the existence of an urgent cause, it is not necessarily required to proceed immediately to a summary dismissal. Both legislation and case law allow room for a prior investigation and, in many situations, such an investigation is essential to establish the facts properly.

That flexibility is not without limits. An investigation must remain proportionate, respect the privacy rights of the employees involved, and, above all, be conducted diligently and without unnecessary delay.

If you have any questions regarding investigations into alleged misconduct, the use of investigative measures, or summary dismissal, our Employment team would be pleased to assist you. Please feel free to contact us.