Employment

Much has been written recently about the way that organisations approach employee-related investigations. As an employment lawyer, I have been particularly interested in the importance of the investigation stage when it comes to dealing with such sensitive issues, as it is a vitally important element of dealing with them properly from a legal perspective.

But how many organisations actually consider investigations in the context of organisational values? Every organisation operates to a set of values. For some, they are an integral part of the organisation’s DNA. For others they may be more low key. However your organisation approaches its values, the concept of fairness is something that employees, customers, suppliers and other stakeholders will assume is a key element of the way you operate.

Every organisation will face situations that require it to use those values to reach a decision. Some are everyday situations such as negotiating a new contract or making a promotion decision. Others are more complex and testing such as reaching a disciplinary decision or investigating an allegation of wrongdoing. In some circumstances, the issues can reach right to the very top of an organisation and can involve senior individuals. Some investigations involve considering the “culture” of an organisation and how it impacts, for example on the advancement of women or employees from under-represented backgrounds.

When those complex situations arise, it is critical that your organisation carefully considers the best way to investigate the issue. The investigation is the bedrock of the decisions that follow. A poor investigation will lead to bad decisions, disgruntled stakeholders and possibly legal action. Recent high profile cases have highlighted the need for a careful, fair and independent investigation to be carried out, particularly if the issues raised have the potential to impact on careers, livelihoods or even liberty. Where senior individuals are potentially involved, their influence can affect the investigation even if they are removed from it in a practical sense. That is where an independent investigation really comes into its own.

Within the Brodies team, our experience of collecting and analysing evidence; interviewing witnesses and presenting conclusions in a logical and impartial way is heavily influenced by the forensic approach required to present a case before the courts and tribunals. Our professional obligations and independence from the organisation mean that our conclusions on the evidence can be relied upon by decision makers without fear of legitimate findings of bias or collusion which are so often aimed at internal departments. We are also able to mobilise an investigation team at short notice and ensure that they are not distracted by the business as usual pressures that your internal teams face.

We have recently assisted public sector bodies with investigations into alleged misconduct; educational institutions with investigations into alleged bullying and harassment by senior individuals and, particularly in the finance sector, investigations into areas of the business alleged to be operating a “cowboy culture” and deliberately disregarding regulatory obligations.

The ability to draw on expertise from across our firm with specialists from our corporate crime; government and regulatory; financial services and education teams has meant that we can produce reports and conclusions which incorporate specialist legal knowledge where required. Our employment team all have experience of appearing in courts and tribunals and conducting the advocacy in cases themselves and so have an acute understanding of the things that are often criticised by tribunals in investigation reports.

Your decision makers have a hard enough job reaching the right decision without having to worry about criticisms of a poor investigation as part of their role. While not every issue your organisation faces will require instructing a third party to conduct the investigation, when those issues do come up and when the values of your organisation are truly tested, the benefits of a professional, outsourced investigation are huge.

Tony Hadden

Head of Employment & Partner at Brodies LLP
Tony is head of employment and a partner at Brodies. He enjoys resolving employment related disputes and has over 15 years’ experience of representing clients in employment disputes both before employment tribunals throughout the UK and in pre-litigation settlement discussions.
Tony Hadden