When there is an allegation of wrongdoing or a grievance is raised, it is important that a fair and reasonable workplace investigation is carried out to establish the facts and support any next steps.
Investigations cause a great deal of concern for many employers. We often hear, “we want this over as soon as possible”, “this is very disruptive to the whole team” or “he is very worried, I want to get it out of the way quickly for him”. While well-meaning, a superficial investigation which is neither fair nor reasonable may cause more harm than good.
With managers spending an estimated 7.6 days per year dealing with disciplinary issues, and 7.5 days per year dealing with grievances (CIPD) – what do they actually need to do to get this right?
What is fair?
A fair investigation is one that is conducted as impartially as possible. Wherever possible the investigator should be someone who has not already been involved in the situation. This can be hard in smaller organisations, or where multiple people are named as witnesses. Where you can’t find someone neutral do make sure that your documentation justifies why you have selected one individual to investigate, and demonstrates that you have considered all sides. Alternatively your procedure may allow for you to bring in an external investigator to carry out the proceedings on your behalf.
What is reasonable?
Firstly the investigator should have the necessary skills to be able to carry out a fair and reasonable investigation.
The investigation should be limited to the current complaint, and should not ‘seek out’ other issues (beware the witch hunt!) Ideally the investigator will set out the terms of reference, or scope out the investigation before they start. They should define what evidence is required, who to interview, reference to internal policies for guidance and arrange for meetings to take place. If a new and different issue is brought to the investigator’s attention this should be investigated separately unless it is directly relevant.
Case law shows us that when considering the scope of a reasonable investigation, we must consider the potential outcomes. If a potential outcome is dismissal, the investigation must be more through than if an outcome might only be a first written warning. A good example of this can be seen in Salford NHS Trust v Roldan; the tribunal found that the investigation had not been through enough, knowing that an outcome of dismissal for Roldan would also mean deportation.
The conclusion set out that the more serious the potential consequences, the more through the investigation should be. Ultimately an allegation of occasionally taking an extra five minutes for lunch cannot be compared to one of sexual harassment for instance and the depth of the investigation should reflect the nature of the allegations and potential outcomes.
Conducting an investigation
The purpose of an investigation is to gather facts and assess, based on those facts, if further action is required. An investigation may include interviewing the employee, obtaining copies of relevant paperwork or communications, interviewing witnesses, gathering file notes or records of informal meetings, and obtaining other physical evidence such as CCTV and data logs.
When it comes to witnesses, we sometimes find that people do not want to speak out about a colleague, either due to loyalty or fear of reprisals. In some cases, it may be possible to anonymise their evidence, but where they do not grant their permission you cannot use that evidence.
Reporting findings
Once the investigation has been concluded the investigator should compile a report of their findings, this should include:
- Terms of reference – an outline of what is being investigated
- A list of evidence collected and reviewed (and evidence that could not be collected)
- A summary of the facts that were established through the evidence
- A conclusion of each of the terms of reference(without recommending sanctions)
- Copies of all the relevant documentation and evidence
- Any other relevant information
What happens next?
Depending on your disciplinary policy it may fall to the investigator or the manager hearing the disciplinary or grievance to decide whether there is evidence to warrant further action. That person must consider all the facts available to them and decide whether to progress further. If recommendations are asked for, the investigator should not suggest a possible sanction or prejudge an outcome to a disciplinary/grievance hearing – simply set out the need for there to be one. The options here are usually:
- there is no case to answer
- there is a case to answer at a disciplinary hearing
- this was a vexatious or malicious allegation
If it is decided that there is a case to answer, to avoid claims of unfair dismissal (either as a result of this hearing or future hearings building on a warning issued at this stage) be careful to follow a comprehensive process. The exceptions, for example where the employee has a short length of service, but you need to be sure your policy allows for a shortened process.
In any event, don’t forget to let the employee know the outcome and next steps if there are any.
Benefits of outsourcing investigations
Our experienced advisers and investigators are here to help every step of the way and there are major benefits to be gained from outsourcing workplace investigations:
* A huge saving of management time, allowing a focus on team morale and the day job
* Increased employee engagement, trust and confidence in the process as it is known to be independent
* Peace of mind for the employer that any decision appealed will have a robust defence
* Increased potential for matters to be resolved appropriately
* Reduced potential risk and cost of tribunal claims.
Talk to us about investigations for grievance, disciplinary, whistleblowing and discrimination matters.
Do reach out to find out how we can support you, call 01582 252500 for a pressure-free chat or book onto our upcoming training on Managing Allegations and Investigations.
By Jenny Ryder-O’Regan