With Sue Gray’s eagerly-anticipated report on Downing Steet parties on the horizon, Jonathan Maude outlines what an internal investigation into employee misconduct should involve.
This week the Metropolitan Police issued its first fines to people who attended parties at Downing Street during lockdown. Following on the heels of these fines will be Sue Gray’s long-awaited full report following her independent investigation into the goings-on.
“Partygate” has raised the profile of internal investigations and the important role they can play in getting to the bottom of activities which may pose both reputational and financial risks to employers, and critically, the pitfalls of getting it wrong.
Employees’ allegations, complaints and concerns are becoming more present in public awareness. Compliance and regulatory duties, individuals’ increased awareness of their employment rights, and expectations of accountability and ownership from their employers, all play a part in this.
There are many situations where an investigation may need to be undertaken. It is extremely important to get it right, as failure to do so can make a difficult situation worse. This is perhaps best illustrated by the initial appointment of top civil servant Simon Case to lead the investigation into the Downing Street parties, when it later transpired he had attended some of the events to be investigated. There is also frequently a great deal of emotion involved, so a clear, objective approach must be followed.
Internal investigations
Managing conflict: How are investigations holding up in the pandemic?
How can employers protect documents from internal investigations?
Often an individual’s reputation and livelihood may be on the line, so the investigation will need to be thorough and follow recognised practice to ensure it stands scrutiny. Many employers have “employee hotlines” or “speak up” frameworks and complaints filed in this context will need to be investigated, as will more standard grievances. There may also be pockets of a business which have higher incidences of complaints or claims, so these may need to be investigated via an HR audit or similar.
At the outset, the “terms of reference” (or the points to be looked into) need to be clearly set out and agreed. 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.
Who will investigate the misconduct?
Consideration needs to be given to who should carry out the investigation. Will this be someone from inside or outside of the business? Usually, this is determined by the nature of the allegations.
An internal investigation should ideally be undertaken by someone who is senior and experienced in the process. Alternatively, external help can be sought from HR professionals or lawyers, which has the advantage of protecting the communications aspects of the investigation by legal privilege, if the matter is set up in the right way. This will provide a “shield” to access being sought by a complainant using data privacy legislation, or issuing legal proceedings. Either way, communication and the number of people involved in the process should be kept to a minimum to avoid information being leaked.
Communication and the number of people involved in the process should be kept to a minimum to avoid information being leaked.”
Presenting the investigation’s findings
Usually, the outcome will be detailed in a report that sets out both the findings and recommendations. It is helpful to have a logical structure which can then be populated with the evidence, which can come from interviewees, emails, texts etc. Including only the most relevant evidence extracts, as well as having clear structure, helps prevent the report becoming too unwieldy. An effective structure usually consists of an executive summary followed a more detailed set of findings linked to supporting evidence, and should conclude with appendices where the evidence can be found.
Once completed, there are a number of possible outcomes including: no action being taken, identifying coaching needs, initiating disciplinary proceedings, or a need to advise regulators as to breaches of regulation.
Employers should expect the findings to be challenged and derided on occasion, hence the need to be structured and transparent about the steps taken. The counter-intuitive aspect of this work is that the complainant may never find out the detail of the outcome. They can be told the investigation has been completed and recommendations made, but rarely will the detail be provided to the person who initiated the process in the first place..
Sign up to our weekly round-up of HR news and guidance
Receive the Personnel Today Direct e-newsletter every Wednesday
In the modern age, a company’s reputation is generally more valuable than the costs associated with possible claims. Having a transparent and thorough process for internal investigations can encourage employees to trust that their concerns will be taken seriously and help avoid unwanted attention in the public eye.
HR Consultant opportunities on Personnel Today
Browse more HR Consultant jobs
