With allegations of misconduct and bullying emerging at the highest levels of business and government, workplace investigations are in the spotlight. Daniel Stander explains how can organisations ensure they are conducted fairly and effectively.
With a report into allegations of bullying by Dominic Raab imminent, and claims by former CBI director-general Tony Danker that he was “thrown under the bus” for alleged misconduct, recent events have shone the spotlight on workplace investigations.
Workplace investigations have seen a huge rise in recent years as employees and society at large have an increasing expectation of accountability and transparency.
Given the important role they can play in addressing allegations and concerns in the workplace, and the reputational and financial risk to organisations in getting it wrong, how can companies ensure they are done fairly and that employee rights are respected?
Why might you need to conduct a workplace investigation?
A workplace investigation is a fact-finding exercise where an organisation can collect all the relevant information relating to allegations against an employee.
While not all complaints will call for the same approach, there are many scenarios where an investigation may need to be undertaken, starting with the most straightforward of grievances about various types of misconduct, through to more complex whistleblowing complaints.
Workplace investigations
What should an investigation into employee misconduct involve?
Investigations may also be launched where there are concerns surrounding an employer’s culture or pockets of toxicity within an organisation, as well as “post-mortem” investigations following an unexpected tribunal loss. Of course, workplace investigations may also be required to scrutinise decisions made by past investigations.
It is important to remember that not all issues will require a workplace investigation; many conflicts can be resolved through more informal routes such as mediation.
How to prepare for a workplace investigation
At the outset, the “Terms of Reference” of an investigation need to be set out and agreed by everyone involved so that the investigator’s role and purpose are clear.
Acas guidance on workplace investigations suggests these terms should factor in the following:
- what the investigation is required to examine;
- whether a recommendation is required;
- how the findings should be presented – for example, an investigator will often be required to present their findings in some form of investigation report;
- who the findings should be reported to and who to contact for further direction if unexpected issues arise or advice is needed. This might be HR or a similar experienced and informed source.
Who should conduct the workplace investigation
Investigators are often faced with 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 the evidence and decide where the truth lies, and so on. Choosing who should be tasked with leading the investigation will depend on the nature of the issue.
An internal workplace investigation should ideally be conducted by someone with sufficient skill and experience in the process. Alternatively, independent external help can be sought from HR professionals or solicitors.
Specialist knowledge is crucial – for example, in Raab’s case, the investigation into bullying allegations has been undertaken by an eminent barrister steeped in employment law expertise.
For workplace investigations that could become very public, employers may want to consider how a proposed investigator will stack up if required to answer questions in front of a judge or appear before a parliamentary committee. Credibility is king.
Investigation timeframes
Workplace investigations will invariably need to be completed in a timely manner to preserve credibility and protect against legal and reputational risk.
At the outset, organisations should consult their policies and procedures to see if they contain timescales for the investigation to follow.
If no timescale is specified, an employer should provide a provisional timeframe within the Terms of Reference for when the investigation should be completed.
A complicated matter may take several weeks or even months to conduct properly. A relatively simple matter may only require a small amount of investigation time for it to be reasonable.
Confidentiality
There will be a limited number of workplace investigations that may be appropriate for the workforce (or pockets of it) to know about, such as when looking into the organisational culture. But generally, the number of people involved in the process should be kept to a minimum to avoid information being compromised.
Even if it becomes known that a workplace investigation is being conducted, its details should be kept confidential wherever possible.
This will reduce any negative impact on the parties involved in the matter and mitigate against the risk of employee morale being adversely affected unnecessarily or witnesses discussing their evidence outside the confines of the investigation process.
Evidence in workplace investigations
If there is a complainant who is prepared to speak up, they need to be interviewed and their complaint must be clearly detailed and agreed with them.
If an investigation is being conducted under an employer’s grievance or disciplinary procedure, that procedure will usually specify whether there is any right to be accompanied at interviews. If a right to be accompanied is present, then it should be afforded equally to all those interviewed as part of the process.
An investigator should collect any documentation that may help them corroborate or contradict other evidence collected or possibly highlight areas that an investigator needs to explore further at an investigation meeting.
Whether to suspend someone
An employer may decide that suspension on full pay is necessary while the investigation is carried out. This should not be a knee-jerk reaction and may only be appropriate in limited circumstances, such as where there are concerns evidence may be tampered with or there is a risk to an individual’s health and safety.
In the new Acas guidance on suspension, it is made clear that suspension should only be utilised in a serious situation and when there is no alternative.
It is also recommended to review the suspension regularly to make sure it is still needed, as the longer it goes on for, the higher the chance that the suspension has become unreasonable and could lead to a breach of contract by an employer.
What happens next?
Once a workplace investigation has been completed, the outcome is usually presented in a report that sets out both the findings and recommendations.
An effective structure commonly includes an executive summary followed by a more detailed set of findings linked to supporting evidence, and should conclude with appendices where the evidence can be found.
Investigators should prepare for their findings to be challenged, hence the need to follow a logical, structured and transparent approach at all times.
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