Workplace Investigations – Reducing the Risk

image by @Andrea Piacquandio

Find out what you need to have in place to ensure that your workplace investigations support fairness, compliance with best practice, keep you and your company safe and are fit for external scrutiny!

We work with you as a Strategic Business Partner to ensure that our methods and your outcomes have a strong people and business focus

What is the most critical issue to be aware of?

As a decision maker you need to be confident that where misconduct is alleged, you must genuinely believe the employee is guilty, and must have reasonable grounds for that belief, which must have been reached following a reasonable workplace investigations.

This approach comes from the case of BHS v Burchell 1978 which is still relevant today

Our approach therefore is to ensure that our investigations are ‘reasonable’ and we undertake them in a Proportionate, Objective and Professional manner.

Why do we need a Terms of Reference (ToR)?

How many in-house investigators have been sent an email saying “there’s been an incident, can you investigate” and with no further information you crack on with it along with your day job and by the time you complete it you’ve lost focus on what your manager needed you to investigate, if you ever had it in the first place … and just followed your instinct !

We always ask for and agree a ToR before starting investigations. This will support the investigator to:

  • Be clear on the relevant policy/ies – which ensures that you focus on the measures contained within them and that you also comply with company policies
  • Agree the scope of the investigation – the ToR will enable you to identify the number of witnesses, the potential length of meetings and the evidence which needs to be gathered
  • The size of the investigation in relation to both number of ‘working days’ to complete it and the time frame. You can then be clear on delivery times and resources required
  • Plan the investigation – you will be able to think through the order in which you will undertake the investigation making best use of everyone’s time and resources

Why do you need to consider the wider context?

Over the years we have been asked to undertake investigations where ‘surprises’ pop up. This usually happens when the manager who commissioned us only gives us the information relating to the current issue. We then meet with the complainant and/or respondent and realise that the current incident was part of something bigger.

Aslam had been suspended and then dismissed due to an allegation of bullying however the investigation had not taken account of, amongst other concerns, previous issues which had impacted on her behaviour. The Employment Tribunal decided that, whilst Aslam did not behave appropriately, given the wider context dismissal was not a reasonable outcome.

Would we not save time by just asking for statements from those involved rather than meeting with them?

A critical part of the investigator’s role is to find out the facts of the case. If you simply ask for a written statement then you miss out on the additional information to be gained by following up on what people say and probing for further information.

Only by interviewing those involved will you have sufficient information to ensure the investigation is ‘reasonable’.

What do I need to do to have a good investigatory interview?

Investigators must be able to:

Including relevant context is critical to the investigation, for example in the case relating to Aslam v BBC [2010]

  • Prepare questions in advance
  • Comply with company policy in relation to representation and notice etc.
  • Build and sustain rapport with the person throughout the interview
  • Ask great open questions and follow up on responses (don’t just stick to the questions you prepared earlier)
  • Be empathetic without ‘agreeing’ with the person
  • Be in control of the interview without being dogmatic or autocratic
  • Separate fact from opinion
  • Separate direct observation from third party comment
  • Query and probe to clarify and obtain accurate and full information
  • Challenge when necessary in a non-adversarial manner
  • Take good notes which accurately reflect what was said
  • Be clear about what happens next

How much evidence do I need to gather?

Given that the decision making will hinge on the reasonableness of the investigation it is critical that sufficient information is gathered

ACAS have a really helpful guide on conducting workplace investigations

They make it clear that you are establishing the facts of the matter which means that you are considering evidence which supports and contradicts the allegations.

You need to be thorough in collecting evidence, continually check on any gaps and identify what evidence could be gathered to reduce these.

The evidence gathered also needs to be proportionate and relevant to the issues being investigated.

Do I need to analyse the evidence gathered or can I just pass the evidence and conclusions to the commissioning manager?

The decision-making manager needs the investigator to analyse and present their investigation and findings in an objective manner. This means that you will need to document your analysis in the report not merely present your findings.

If you don’t include your analysis the deciding manager will need to do this themselves which risks the loss of objectivity.

It is also critical that the investigator and decision-making roles are separate so don’t allow them to overlap by insufficient analysis in your report.

What if it is one word against another?

We get asked this question a lot particularly in cases of bullying and harassment. It’s correct that evidence gathered from an eye witness is the strongest however if it is one word against another it is also appropriate to seek evidence from elsewhere. You can look more broadly and rigorously at the relevant circumstances including evidence which might cast doubt on the credibility of witnesses.

The case below provides a useful example of this

What should the report look like?

The report needs to:

  • Be passed to the commissioning manager and no one else!
  • Be set out in a logical manner so that the reader understands what has happened
  • Include a summary of how you went about the investigation
  • Set out each allegation with the evidence for and against detailed for each
  • Ensure that conclusions on whether there is evidence to support the allegations or not are clearly explained in your analysis
  • Ensure that the evidence is measured against the relevant policy or procedure in terms of potential breaches
  • Have no subjective statements, so no ‘I don’t believe’ or ‘They couldn’t persuade me’ type comments
  • The decision maker should not have to refer to documents not included in the report and appendices
  • Ensure that you number paragraphs and pages in both the report and the interview notes. There is nothing more frustrating than sitting at a hearing and trying to find something which someone said and everyone is flicking through their bundle of documents

We approach our reports with the view that the reader will understand the facts of the case in relation to each allegation and understand how we have weighed up the evidence to get to the conclusions made. This should be clear enough to support them to make an informed decision on the next steps.

I have taken some time to read your report including all of the supporting documents and statements. In my view the report is very thorough and measured. I am confident in both the professional manner in which you have undertaken this investigation and the considered outcomes presented within your report. The report reflects the independent nature of your investigation, which is of high importance to us, and it meets and delivers on all aspects of the agreed ToRs. Thank you for your work, your report will enable us to make informed decisions going forward”. Board Director of a Scottish Charity

Dorothy is the founder and Director of a specialist HR company who “empower workplaces to be inclusive, productive, healthy and fair”

Dorothy has over 40 years’ experience in the field of HR and her company supports workplaces to resolve conflict and improve performance.

We can undertake investigations for you and/or train your staff to undertake them safely and fairly.

Contact us on 0131 524 8191

workplace investigations

when you need us

You have received a grievance, complaint, dignity @work claim etc. or there has been an incident at work where you need to properly establish what has happened, what actions if any need taken and you need to move forward for the best interests of the people involved and your business You don’t have the capacity or capability to undertake this yourself or you need independence due to others in your organisation being already involved in the case in some way

what we do for you

You will get a report which is proportionate to the seriousness of the issue/s, covering the evidence gathered, any breaches of policies or procedures, conclusions on each allegation and where there has been a grievance recommendation for resolution and any learning identified

benefit to you

You will receive a report which supports you to clearly see what you need to do next, which holds its own in relation to appeals and other proceedings, the highest level of independence which is critical particularly when the issues are complex and the knowledge that you and your issues are safe with us