In their ‘Conducting workplace investigations guide’, ACAS defines an investigation as ‘a fact-finding exercise to collect all the relevant information on a matter.’ The main occasions for investigation are normally related to poor conduct, poor performance, or a grievance/complaint has arisen. The guide goes on to say: ‘Making a decision without completing a reasonable investigation can make any subsequent decisions or actions unfair, and leave an employer vulnerable to legal action.’
How do employers conduct a fair and reasonable investigation?
Prepare Before the Need Arises
Long before a need arises, employers should put in ground work that may help them further down the line. If correction, increased support, or any rumbles of a complaint are received, employers should create brief, dated written records of occasions. Where a one-to-one is held, minutes ought be taken detailing verbatim (within reason) the employees responses and the line-managers actions. The employee should be sent a copy of the notes for final written approval and asked if the notes covered everything, or if further discussion is required.
This foundational level of documentation will help later down the line if a more formal process needs to be taken; employers are able to prove any action and response they and the employee have taken. Moreover, being prepared will aid with speeding up any process.
Use the Correct Process
The ACAS guide on conducting workplace investigations provides six clear steps:
- Organisational Preparation. Initially, the organisation should determine if an investigation is necessary or if an informal resolution may be more practical. If an investigation is necessary, then an employer should act promptly. Unnecessary delay may cause memories to fade or give the perception of an unfair process. The organisation should then, determine what and who should be investigated, appoint an investigating officer, and define their remit, and provide a timeframe for work to be undertaken.
- An Investigator’s Preparation. The person appointed to conduct the investigation (Investigating Officer) creates a plan to ensure they approach the investigation with fairness and structure. The officer should determine what evidence is required, who to interview, reference to internal policies for guidance and arrange for meetings to take place.
- Handling an Investigation Meeting. An investigation meeting is simply an opportunity for an investigator to interview someone who is involved in, or has information on, the matter under investigation. Prepare relevant questions, establish if the employee can be accompanied, and arrange a means of recording the meeting for future reference.
- Gathering Evidence. When gathering evidence an investigator should remember that their role is to establish the facts of the matter. Evidence could include, CCTV footage, emails, data from reports, witness testimonies, customer feedback, WhatsApp messages etc. Objectively ask what the evidence reveals, are there any doubts of credibility or reliability, and does it suggest that any further evidence should be collected?
- Report the Investigation Findings. Once the investigating officer believed they have established all the facts of the matter, an investigation report can be produced explaining findings, recommendations and noting any supporting documents. If recommendations are asked for, the investigator should not suggest a possible sanction or prejudge an outcome to a disciplinary/grievance hearing.
- Following the Investigation. It is important to highlight that the investigating officer’s job at this point is now complete. They should not be involved in any decision making as this will be perceived as unfair and biased.
Ensure to use the Right Person
Internal processes may be descriptive of which level of management should oversee an investigation. The Investigating Officer should: not be personally involved with the situation as far as reasonably possible so as to ensure unbiased treatment; have good knowledge and experience of undertaking an investigation; and the chosen individual must be able to act fairly and objectively.
Levels of Thoroughness
The seriousness of the allegation or complaint determines the level of resource to be invested into the investigation. An accusation of occasional lateness cannot be compared to one of systemic bullying for instance. The more serious the allegation, the greater the investigation.
Often employers will undertake an investigation in order to ‘catch’ the employee out or to find them red handed. Miller v William Hill Organisation Ltd highlighted the need for employers to look for all relevant facts, including those that would support the employee’s defence. The EAT in this case said the employer’s investigation was not thorough enough as it only reviewed CCTV footage that appeared to incriminate the employee, but did not watch the whole five hours of video.
ViewHR’s Consultants are highly experienced in the conduct of investigations for grievance, disciplinary, whistleblowing, and discrimination matters.
Our independence ensures a rigorous approach to the conduct of internal workplace investigations. There are three major benefits to be gained from such an approach:
> Employee engagement
> Increases the potential for matters to be resolved appropriately
> Assists employers in successfully defending tribunal claims.