In this month’s article we look to Workplace Investigations – why do them and how to do them right.
We will also consider key tips for a successful investigation and the risks of getting it wrong.
Whilst often instinct may be to proceed directly to a disciplinary or grievance meeting when issues arise, best practice is to conduct an investigation. Conducting a “reasonable investigation” is a necessary first step in a fair, formal disciplinary procedure.
Employment investigations are not always straightforward and many small employers may wonder why they need something as formal as an “investigation” in order to make what may appear to be a straightforward business decision. However, smaller employers, as with larger employers, may ultimately need to show an Industrial Tribunal how they arrived at a decision, for example to dismiss an employee for misconduct.
Therefore, when there is a possible employee relations issue at work, the employer should carry out an ‘investigation’ as an initial step, this is where they find out all they reasonably can about the issue.
An employment investigation is conducted in order to inform the decision-making process and as such it demonstrates how fair and reasonable the employer has been with regard to any decision that is taken subsequent to the investigation.
An investigation is to:
At any stage the employer can still look at whether:
The importance of the investigation should not be underestimated, as the concepts of procedural and substantive or essential fairness apply as much to the conduct of the investigation as to the decision that results from it.
As noted above, the employment investigation has a purely informative role and is not responsible for decision making as such. An investigator is not required to make a value judgement on the individual(s) subject to the investigation and in this respect needs to remain objective in his/her approach to conducting the investigation. The Labour Relations Agency advise the appropriate approach to conducting employment investigations is to retain focus on the 5W’ s – Why? What? Who? When? and Where?
Choosing an Investigator
The employer should appoint an investigator who is not involved in the case to carry out the investigation, this is to make sure there is no conflict of interest. If this is not possible, they should take steps to make the procedure as impartial as they can, the size of the particular organisation and available resources may also be relevant here. Where possible, the person investigating should also have had appropriate training.
When choosing an investigator, the best choice will often depend on how serious and complex the case is. For example, if it involves potential gross misconduct, discrimination or bullying, it might be best to appoint someone more senior or experienced.
Preparing for the Investigation
A document which details the methodology and parameters of the investigation should be drawn up first. This document need not be lengthy and is often referred to as the Terms of Reference.
A starting point could be to ask the following questions:
Clear terms of reference can help to:
The employee who is the subject of the investigation should be informed as soon as the employer decides to start an investigation. However, if the employer believes there is a risk that the employee(s) may tamper with evidence or influence witnesses, the employer may wait until there is less risk of this. Employees may be invited to an investigation meeting, or in some cases they may be suspended while the investigation takes place. An employer should consider each situation carefully. Suspension will only be needed in certain situations.
Conducting the investigation
Once the investigation commences there are several general stages including;
Of course the path of every investigation will depend on the specific circumstances, but confidentiality will always be a critical factor.
The investigator will typically make recommendations including informal, formal or no further actions required.
Some of the unfortunate consequences of delayed or mishandled investigations can happen when cases drift. People are left in limbo, communication dries up, and when that happens, confidence in the process collapses on all sides.
An investigation doesn’t need to be quick – it needs to be timely. Not rushed, not superficial, but managed with discipline, clarity, and momentum. Matters should be dealt with “promptly” and without “unreasonable delay”. And where delays are unavoidable, communication becomes even more critical.
Employers should also be asking themselves:
Other technical matters such as suspensions, data protection and privilege are all risks, and of course positive employe relations with all involved are important to be managed.
Act promptly and maintain momentum
Unnecessary delay creates risk. A clear plan from day one, with realistic but firm timelines, helps ensure matters don’t spiral.
Communicate throughout
Individuals under investigation must be kept informed. Silence breeds anxiety, suspicion, and often, grievances. Even if there’s “no update”, that is an update.
Ensure fairness, consistency, and objectivity
Every organisation needs clear, consistently applied policies and a transparent process. Where internal bias or capacity issues create risk, external support can make all the difference.
People Management Solutions can provide advice and support to facilitate Workplace Investigations within your organisation. We can also conduct them on your behalf, providing expertise and impartiality. If you have any queries regarding workplace investigations, or require any assistance in this area, please do reach out to us.