The recent fall out from Lord Dyson’s report into the BBC has shone the spotlight on workplace investigations, and the shockwaves of damage that can be caused when they go wrong, writes Esther Langdon.
The last few years have seen a big rise in the number of workplace investigations, often grappling with sensitive or wide-ranging issues. Modern standards of doing business are changing. The public, and the workforce, have an increasing expectation of accountability and transparency.
The rise of the workplace investigation is a trend that is set to gather momentum, and which proactive and confident employers should harness and embrace, rather than just grudgingly tolerate or accede to when out of other options. Things go wrong in every organisation, and those that prepare for this with robust procedures and a commitment to accountability and meaningful action earn the respect of their workforce and stakeholders, and protect their brand.
Issues should not be regarded as too hot to handle, and investigators cannot give in to a temptation to sit on the fence or file things in the ‘too difficult to deal with’ category”
Aspiring workplace investigators can learn a lot from the Dyson Report. The terms of reference and the investigation process protocol are set out simply and clearly. A great deal of dense and conflicting evidence from many witnesses and stretching back over many years is summarised in a clear, easy-to-read style. The conclusions are easy to find, flow from the evidence laid out and leave no room for doubt or interpretation.
Lord Dyson finds that the BBC’s internal investigation was “flawed and woefully ineffective”. What happened in the previous investigation is analysed forensically. Called out for particular criticism are the BBC’s decision not to speak with Earl Spencer for his version of the facts and the failure to scrutinise Martin Bashir’s account with caution and the necessary degree of scepticism. When Lord Dyson’s conclusions are limited – for example, that there was a cover up, but he cannot say by whom – he says so and explains why.
Lord Dyson, a former Supreme Court judge, makes it look easy, of course. However, it can be anything but. Workplace investigators will need to make many difficult decisions, for example, who to interview, why and in what order, how to gather evidence, whether to ask to see documents which are protected by legal privilege, how to weigh up evidence and decide who is telling the truth and who is lying, and so on.
This will all need to be done in line with Acas and other applicable guidance, and in compliance with data protection and privacy obligations. And that is before it comes to putting one’s neck on the line and making the findings, which invariably need to deal with difficult issues and call out individuals for censure and blame, and may well be unwelcome or unpalatable. Issues should not be regarded as too hot to handle, and investigators cannot give in to a temptation to sit on the fence or file things in the “too difficult to deal with” category.
The characterisation of the BBC’s own investigation as “woefully ineffective”, and the finding of cover up, are likely to ring in the corridors there for years to come. This case illustrates how difficult it can be for an internal investigator to perform this function and to bring the right level of scrutiny and scepticism to bear, and to be seen doing do.
It also shows how critical it is, in ensuring the integrity of the investigation and commanding the trust and respect of those involved, that an investigator is chosen who understands the organisation, who is free from personal relationships with those involved and who has the experience, impartiality and weight to call the shots and make definitive findings. The investigation needs to draw the line under what has gone before and look to the future, which it can only do if it is definitive and authoritative, and not open to allegations of whitewash or leniency.
While it can be hard for an employer to relinquish the process and appoint an external and independent investigator, this is often the most effective way to grapple with issues that can feel overwhelming, and also to be convincingly seen to be doing so.
The investigation needs to draw the line under what has gone before and look to the future, which it can only do if it is definitive and authoritative”
Of course, no workplace investigation should be undertaken lightly. Not all concerns call for the same process or approach, and formal independent investigation should be considered along with other forms of dispute resolution. Uncovering wrongdoing or issues is only going to be harmful if these aren’t received with an open mind and underpinned with a commitment to taking action, however hard.
Appointment of an external investigator therefore needs real buy in from the top, as regards the process, access to evidence and documents and in standing by whatever findings are made. With this must come an understanding of the investigator’s independence and that they must be empowered and left to get on with what they have been asked to do. It looks far better for investigation to be commissioned in a positive spirit of action and learning, than because the employer has run out of other choices.