Workplace investigations require a delicate balance of fairness, objectivity, and thoroughness. Given that the outcome can greatly affect legal compliance, employee morale and company culture, it is essential that employers get it right. This blog addresses some of the most frequently asked questions on the topic.
WHY investigate?
Investigations are central to a fair process and identifying the facts behind and reasons for any misconduct/unfair treatment. The purpose of a disciplinary investigation is to determine whether there is sufficient evidence to convene a disciplinary hearing, and whether it is appropriate to do so in the circumstances; while the purpose of a grievance investigation is to determine whether there is a case to answer and if further action is required.
The ACAS Code of Practice on disciplinary and grievance procedures states that employers should carry out investigations without unreasonable delay, to establish the facts of a case. Failing to follow the Code can be taken into account by the employment tribunal in the event of a claim and can result in any compensation awarded being increased by up to 25%.
WHO should investigate?
Who is suitable to be the investigator will depend on the complaint/allegation(s). For straightforward cases, it will often be the employee's line manager (unless they are involved, in which case another manager should be assigned). Serious or complex cases may need to be handled by someone more senior. When appointing an investigator consider:
- Bias: Will the investigator be fair and objective? Are there any conflicts of interest?
- Training: Have they handled similar investigations before and received relevant training (e.g. on equality, inclusion and diversity)?
- Skills: Are they a confident communicator? Are any specialist skills required e.g. in regulatory misconduct or sexual harassment cases?
- Policies: Are they familiar with company policies and procedure?
- Tech-aware: Are they comfortable using technology, particularly if the investigation is being done remotely?
- Seniority: For grievances, the investigator can be the decision maker if required. For disciplinaries, and any subsequent disciplinary or grievance appeals, the hearer should be more senior to the investigator.
WHAT is HR's role?
Although HR can assist with investigations, any undue interference in the process could result in an unfair dismissal claim. They should not act as decision-makers or share responsibility for the outcome but instead should focus their efforts on advising on legal issues, process, consistency, and report preparation. Read our earlier blog: the HR adviser's role in the disciplinary process.
HOW should we approach the investigation?
Plan. This will ensure that the investigation stays focused, fair, and reasonable, addressing its purpose, direction, and risks.
An investigation is a fact-finding exercise. The extent and form of the investigation will vary. Factors to consider include:
- Purpose: Define the role of the investigator – what is their remit?
- Strategy: What facts need to be established? Is there a risk of legal action or dismissal? Are any extra steps or safeguards needed?
- Policy: What does company policy say (e.g. on timings)? Does it allow employees to be accompanied at investigation meetings?
- Meetings: Identify key individuals and inform them of the investigation's purpose, process, duration, and available support. Provide copies of relevant documentation and advance notice of meetings.
- Evidence: What other evidence will you need to gather? Consider relevant documents or physical evidence such as correspondence, emails, phone records or CCTV.
- Timing: How can the investigation be completed within a reasonable timescale?
- Flexibility: Adapt your plan if new lines of inquiry emerge.
WHERE should investigation meetings take place?
Meetings will usually be in-person if possible, but you should consider:
- Facilities: Is there a need to display information (e.g. CCTV footage)? Do you have the right technology and internet connection? Will there be a note-taker attending?
- Privacy: Can the meeting be held in a private location if the allegations are sensitive?
- Adjustments: Are any reasonable adjustments required? Can participants attend remotely e.g. if an employee is absent due to ill-health / works from home?
- Documents: How are you going to handle documents and address any confidentiality and data protection issues?
WHAT questions should we ask?
Set the scene by detailing the complaint/allegation(s). Ask open-ended questions (who? what? where? when?) starting with background questions before drilling down to specifics for supporting evidence. Avoid leading and interrogative questions.
HOW should we consider evidence?
Assess whether the evidence is reliable; authentic; credible (e.g. considering an employee's length of service, employment record and behaviour in the meeting); and time-sensitive (e.g. evidence obtained via social media or CCTV may expire or be deleted).
Once all the facts are gathered, pause and evaluate. It is good practice for the investigator to prepare a report. Keep records of all documents considered as part of the investigation.
WHAT should the investigation report include?
The report should include use clear language and headings. Consider covering the following:
- Executive summary: Overview of key facts.
- Background: Information on the investigator appointment, allegation(s)/complaint, and investigation scope.
- Methodology: Details of evidence collected, witnesses interviewed, and missing witnesses.
- Findings: Key evidence, facts, and any mitigating factors.
- Conclusions and recommendations: Some employer's processes require the investigator, in addition to undertaking a fact-finding exercise, to make recommendations as to whether further action is required. The report should also highlight any broader workplace issues which need to be addressed.
More information
This is a summary of some of the frequently asked questions about workplace investigations. For more detailed information, please get in touch with a member of the Brodies Employment and Immigration Team. Workbox by Brodies subscribers can access practical content on investigations including FAQs, policies, template letters and training materials.
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Senior Solicitor