Tuesday, 19 February 2008

CSI - Miami

David Caruso (About his character Horatio Caine) : “He’s not a corruptible man, and I think that we’re searching for people to believe in and he is a man that has demonstrated on a very consistent basis that he will not be sidetracked, he will not be poisoned and he will not step back off the ethics that I think people need to have in our civil servants. We want to believe, that the people that represent us in the world, the glue of society, are people that are real and are as pure as possible.”

Once the police have dismissed your case then the school has the right to pursue its own investigative process and to proceed with a Disciplinary Hearing. I leave it to you to consider the relative skills sets between those of a police DC with 30 years of experience and a head teacher - unless your head teacher is like Horatio Caine !

According to ACAS; the investigative process and report should follow these guidelines :

If you have been accused of abuse your employer has a duty to investigate any allegations that have been made against you, or to ensure that an independent investigation is carried out into them. You should always keep in mind that you may have a contractual obligation to co-operate with the investigation - unless for legal reasons - you have been advised not to do so.

Most employers will have written procedures for investigating complaints and/or abuse allegations. You should always examine them at an early stage of the process. If you do not have them to hand ask for them well before you make a response to any questions asked of you.

Check to make sure that the ‘investigative stage’ is separate from the ‘hearing stage’. You have a right to be heard at each stage of the procedure. Normally the employer will appoint an investigating officer to look into the complaints made/allegations received.

Typically the investigating officer will be your manager or a specialist worker. Unless the investigating officer has been given a special brief their job, usually, is to consider whether or not there is prima facia evidence of misconduct.

The investigating officer is obliged to carry out his/her investigation impartially. They must examine the issue from both sides. This means that they must look for facts which support the complaint/allegation, and look for facts which contradict the complaint/allegation. In addition they must demonstrate that they have done so. It is not sufficient for them to examine the position from the complainant’s point of view and simply ask the accused for their comments about what has been alleged.

The investigative officer has a responsibility to ask searching questions of both sides. (S)he must also look for witnesses or evidence that would support both sides of the case. If the accused asks them to interview a particular person or to examine a particular piece of evidence they must do so unless they can give a good reason why they should not.

In summary the investigating officer should:-
  1. Act impartially.

  2. Write to the accused person setting out in broad details what has been alleged, by whom, and in what context and time-frame.

  3. Give reasonable notice of any investigative hearing(s) that may be necessary so that the accused person can take legal advice and begin to prepare their defence.

  4. Allow the accused person to be accompanied at any investigative hearing which may take place. This will usually be a trade union official or a colleague.

  5. Neither presume guilt or innocence.

  6. Be thorough and searching in their inquiry.

  7. Keep accurate notes and, within an agreed time span, provide each party with details of their response to any questions asked of them.

  8. Inform the accused of any evidence which the complainant relies on.

  9. Take an evidential approach to the investigation, and examine the facts.

  10. Look at the issue from both sides and evidence that they have done so.

  11. Not preempt any future hearing by pronouncing guilt. (guilt can only be determined at a full hearing after the defence have made their case.)

  12. Complete the task with the minimum possible delay.

The DfES define their code of investigative practice in this document :

Circular Number 10/95 - Appendix

Your LEA will have their own practice guidelines and in my case, they are defined in this document (refer : Annex 1) :

Handling Allegations of Abuse Against Staff

Good faith should be your guiding principle. Remember that all investigations must be conducted in good faith (in other words, without any preconceived intention to ‘get’ a particular individual). Even if you mistakenly discipline an innocent person, you should be able to avoid legal liability if you conducted the investigation in good faith.

Equal treatment. Fair and consistent treatment of all employees is critical with respect to investigations. Remember that the goal of a proper investigation is not to build a case against any particular employee(s). The key question in an investigation should be : “What happened ?” rather than “Who is at fault ?” Consequently you will likely have to review and revise your investigation procedures as you go along.

Focusing your investigation on what happened rather than who was at fault is particularly important to keep in mind if other employees in similar situations did not have their actions investigated. Inconsistent treatment could be used as proof that a person was chosen for discharge or other adverse employment actions for unlawful reasons.

When workplace misconduct is not investigated consistently, the organization may not be able to defend itself if faced with a grievance, complaint or litigation. The lack of consistency might be used, for example, to show discriminatory intent, to show that the organization doesn’t have employee relations programmes, or to show that the organization acted in an arbitrary fashion.

You can see that the fundamental ethos underpinning the investigative process and report production is that it should be impartial and fair - collating facts / statements that neither seek to prove nor disprove the allegation - that determination is reached by the Disciplinary Committee and is based on ‘balance of probability’.

Later, I will detail aspects of my head teacher’s investigative report and the methodologies that were applied in another blog - needless to say, the above guidelines were ignored !

Balance of Probability

The Standard of Proof required at all stages of the Committee’s decision-making process is the civil standard, ‘on the balance of probabilities’. The ‘balance of probabilities’ standard means that the Committee is satisfied an event occurred if the Committee considers that, on the evidence, the occurrence was more likely than not. The more serious the allegation, the less likely it is that an event occurred and hence the stronger the evidence needed before the Committee concludes that the allegation is established.