Disciplinary Investigation With Missing CCTV and a Conflicted Decision-Maker

Can a disciplinary investigation be unfair if CCTV is missing?

Yes, a disciplinary investigation may be unfair if the employer ignores important evidence, relies on an incomplete account or reaches a conclusion without properly considering reasonable explanations. Missing CCTV can matter where the footage might help establish what happened, challenge a witness account or identify who was involved.

But there is no automatic rule that an employer must abandon a disciplinary case whenever CCTV is unavailable. The reason the footage is missing, what it might have shown, the other available evidence and the employer’s handling of the issue all matter.

The Acas Code of Practice on disciplinary and grievance procedures says employers should investigate the facts, explain the case to the employee and provide a reasonable opportunity to respond. Acas also says that, where practicable, different people should investigate and conduct the disciplinary hearing in misconduct cases.

You can read the Acas Code of Practice and its guidance on workplace disciplinary investigations.

1. What should you do if CCTV has been overwritten or cannot be found?

Start by establishing what happened to the footage. CCTV systems may automatically overwrite recordings after a retention period. Footage may also be unavailable because a camera did not cover the relevant area, the recording was not saved or someone failed to preserve it. These possibilities are not the same as deliberate deletion.

Ask the employer to confirm, as far as it can, the following:

• Which camera or cameras were checked and the time period searched.
• Whether the relevant footage ever existed or was recorded.
• When the footage was reviewed, requested, exported or deleted, if known.
• The normal retention period and whether the recording was automatically overwritten.
• Whether any still images, extracts, access logs or contemporaneous notes remain.
• Whether other records can help establish the same facts.

Keep your request factual. Avoid alleging that someone deliberately destroyed evidence unless you have a sound basis for that claim.

Make a written request promptly if you believe footage may still exist on another system or backup. Ask the employer to preserve any remaining relevant material while the investigation is ongoing. You can also ask about access to your personal data through a subject access request where appropriate. That route is subject to legal limits and exemptions, and it does not guarantee access to every recording or an unedited copy showing everyone in it.

The Information Commissioner’s Office explains individual rights to access personal data in its guidance on getting copies of your data.

2. What if witness statements contradict each other?

Different witness accounts do not automatically prove that an investigation is defective. People may remember an event differently, have seen different parts of it or be mistaken about timing. A fair investigation should identify material inconsistencies and consider how they affect the evidence rather than simply choosing the account that supports the allegation.

When you challenge a statement, be precise. Identify the part you dispute, explain why it matters and point to anything that may help resolve the difference, such as messages, shift records, access logs, documents or another witness.

For example, if one witness says an incident occurred before a meeting and another places it afterwards, ask the investigator to check the meeting record, relevant timestamps or other reliable evidence. If a witness says you were present but the rota suggests you were elsewhere, provide the rota and ask that it be considered.

You can ask for relevant witness evidence in sufficient time to prepare your response. The Acas Code says it will normally be appropriate to provide copies of written evidence, including witness statements, with the written notification of the disciplinary case. Confidentiality and data protection may affect how information is shared, but an employer should still explain the case you need to answer adequately.

Do not assume you have an absolute right to every internal document or to question witnesses directly in every workplace process. Instead, explain what information you need, why it is relevant and how its absence affects your ability to respond.

3. What if the investigator or decision-maker is conflicted?

An investigation may be called into question if the person responsible has a personal interest in the outcome, is a material witness, has already made up their mind or is investigating their own disputed conduct. The concern is not simply that a senior manager is involved; it is whether the process can fairly examine the evidence and consider your response.

The Acas Code says that, where practicable, different people should carry out the investigation and the disciplinary hearing in misconduct cases. This is a practical safeguard, not an absolute requirement that every employer must always have a different investigator and decision-maker in every circumstance.

If a chief executive or senior manager is involved, distinguish between legitimate oversight and direct involvement in the disputed events or outcome. Explain the specific connection that causes concern. For example:

• The proposed decision-maker was directly involved in the incident being investigated.
• The person has made statements suggesting that the outcome was decided before hearing your explanation.
• The investigator is also a witness whose own actions are disputed.
• A person who raised the allegation is controlling which evidence the investigator considers.

Write to HR or the person overseeing the process, set out the concern and ask whether another suitably independent person can investigate or decide the matter. If the employer says that is not practical, ask how it will ensure your response and the evidence are considered impartially.

Do not rely only on labels such as “biased” or “conflicted”. State the facts behind your concern and what practical safeguard you are requesting.

4. Do you have a right to see the evidence before the hearing?

You should be given enough information about the allegation and the evidence relied on to prepare a meaningful response. The Acas Code says the written notification should contain sufficient information about the alleged misconduct or poor performance and its possible consequences. It would normally be appropriate to provide copies of written evidence, which may include witness statements.

Before the hearing, check whether you have received:

• A clear description of each allegation and the relevant dates or events.
• The evidence the employer intends to rely on, including relevant statements and records.
• An explanation of any important evidence that is unavailable.
• Details of the hearing, possible outcomes and your right to be accompanied.
• Enough time to review the material and prepare a response.

If evidence is missing or arrives late, identify what you need and why. Ask for the material, clarification or additional preparation time. If the employer refuses, ask it to record the reason and explain how you are expected to answer the allegation fairly without it.

There may be legitimate reasons for redacting information or limiting disclosure, including privacy and confidentiality. However, the process should still give you a fair opportunity to understand and answer the case against you.

5. Is a short preparation period a reason to postpone the hearing?

The Acas guidance says a disciplinary hearing should be held without unreasonable delay, while allowing the employee reasonable time to prepare. There is no single statutory number of days that is automatically sufficient for every case. What is reasonable depends on factors such as the seriousness and complexity of the allegations, the volume of evidence, whether material has arrived late and whether you need time to obtain advice or arrange a companion.

If you have been given only a short time, write before the hearing and explain exactly what prevents you from preparing. For example, you may need to review several witness statements, compare conflicting timelines, obtain relevant records or respond to evidence supplied shortly before the meeting.

Ask for a reasonable postponement or adjournment and propose a practical alternative if possible. Keep a copy of your request and any response. If the employer refuses, you can still attend and clearly explain the outstanding preparation issues, while asking that your objections and requests be recorded.

6. Your right to be accompanied

Under section 10 of the Employment Relations Act 1999, a worker who is required or invited to attend a qualifying disciplinary or grievance hearing and reasonably requests a companion has a statutory right to be accompanied by an eligible person. This can include a fellow worker or a qualifying trade union representative or official.

The companion can put your case, sum it up, respond on your behalf to views expressed at the hearing and confer with you. They do not generally have the right to answer questions on your behalf. The statutory right does not automatically apply to every investigatory meeting, although an employer’s policy or other circumstances may allow accompaniment there.

Ask in writing to bring your chosen eligible companion and check the employer’s disciplinary policy. If your companion is unavailable at the proposed time, section 10 includes a postponement mechanism where the statutory conditions are met and you propose a reasonable alternative within the required period.

Read section 10 of the Employment Relations Act 1999 for the statutory wording.

7. What to write to your employer

A concise, structured email is usually more effective than a general accusation that the whole investigation is unfair. Adapt the following points to your circumstances:

1. Identify the process. State the allegation and the scheduled hearing date, if known.
2. List the evidence concerns. Describe the missing CCTV, inconsistent statements or records you have not received.
3. Explain relevance. Say what the evidence could clarify and how its absence affects your response.
4. Raise independence concerns factually. Identify the decision-maker’s specific involvement and request an appropriate safeguard.
5. Request practical action. Ask for relevant disclosure, preservation of remaining records, clarification of the evidence search, or a different investigator where appropriate.
6. Ask for time if needed. Explain how much additional preparation time you reasonably need and why.
7. Keep records. Save your email, attachments and the employer’s response.

8. What if the employer proceeds anyway?

If the employer refuses to address your concerns, you can still explain your position at the hearing. Bring a written timeline, copies of relevant documents and a list of questions. Ask for your evidence and objections to be considered and recorded. Keep your language factual and avoid personal attacks.

After the hearing, the employer should communicate its decision and explain the right of appeal. If a warning or dismissal follows, check the disciplinary policy and appeal deadline promptly. In an appeal, identify specific procedural problems, evidence that was overlooked and any reason the outcome should be reconsidered. Ask for an appeal manager who has not previously been involved where practicable.

A defective investigation does not automatically mean that a warning or dismissal is legally invalid. The consequences depend on the facts, the applicable contractual and legal framework, the seriousness of the defect and the outcome. If dismissal is involved, the fairness of the process may be relevant to an unfair dismissal claim where the legal requirements for such a claim are met.

Employment tribunal claims can have strict time limits. If you think you may have a claim, do not assume that an internal appeal or grievance pauses the legal deadline. Check current guidance promptly and consider getting advice on your specific circumstances.

9. Common mistakes to avoid

• Assuming missing CCTV proves misconduct or proves innocence. Explain what it could establish and assess it alongside the other evidence.
• Accusing someone of deleting footage without evidence. Ask for a factual explanation and preserve what you know.
• Making only a general complaint about bias. Identify the decision-maker’s involvement and the safeguard you want.
• Waiting until after the hearing to raise preparation problems. Put relevant requests in writing as soon as possible.
• Ignoring the invitation letter or employer policy. Check the allegations, possible outcomes, evidence and appeal process.
• Assuming every meeting carries the same accompaniment rights. The statutory right generally applies to qualifying disciplinary and grievance hearings, not automatically to every investigatory meeting.

When a document review may help

General guidance can help you identify the issues, but the strength of a challenge often depends on the wording of the allegation, the investigation report, the evidence disclosed, the employer’s policy and the correspondence about missing records or the proposed decision-maker.

A focused disciplinary evidence review can help identify gaps in the investigation, organise conflicting evidence, frame proportionate written requests and prepare a clear response or appeal. It should distinguish between facts that can be evidenced, questions that remain unanswered and legal conclusions that depend on the full circumstances.

Frequently asked questions

This article provides general information about workplace disciplinary procedures in Great Britain. It is not personalised legal advice and does not create a solicitor-client relationship. The correct approach depends on the facts, your employment documents and the employer’s procedure. Northern Ireland has a separate legal framework.