Workplace Investigations – What do employers need to know?

Following the release of Sue Gray’s report on lockdown gatherings at Downing Street there may be managers who are wondering how they would carry out an important investigation into possible wrongdoing in their workplace.

Whilst the matters under investigation will (hopefully!) differ from those currently hitting the headlines, the role of ‘investigator’ will be no less vital to your organisation. There can be lots to think about if you find yourself undertaking that role so here are 5 handy hints to help you get it right.

 

Ensure you are the right person for the job

There can be many things that affect the appropriateness of a choice of investigator, two key ones often are:

  • Right person, right stage

When choosing an investigator it’s important for employers to think about who will carry out a disciplinary hearing, if one becomes necessary, and any potential appeal hearing. Unless it’s unavoidable, employers will need to have different people conducting each stage (and ideally the person conducting any appeal hearing will be more senior than the disciplinary manager). This can affect the choice of investigator. Separation of rolls is important as should the matter proceed to a disciplinary stage the employee should receive an impartial hearing.

  • Any previous involvement?

You should not usually be responsible for carrying out any stage of the process, including the investigation, if you have had direct involvement in the matter e.g you are a key witness. Again, this goes towards fairness.

 

Approach the matter in the right way

The investigation needs to be carried out fairly. As part of this the investigator should:

  • Approach it objectively and with an open mind
  • Be thorough
  • Look out for any evidence that supports the employee as well as evidence against them
  • Deal with the ‘suspected wrongdoer’ (and anyone else who is involved in the investigation, such as witnesses) in an appropriate and reasonable way

 

Act promptly

Whilst investigators may find they have great demands on their time, often due to carrying out their daily duties alongside this added responsibility, it’s important to start an investigation promptly. The ACAS Code of Practice on Disciplinaries and Grievances says that an investigation should be undertaken “without unreasonable delay”.

From a practical point of view acting promptly means that matters are fresh in witnesses minds and other evidence such as CCTV footage may be more easily attainable. From a fairness perspective, unreasonable delays in carrying out an investigation could give grounds for a complaint from an employee, and in some circumstances could result in an unfair dismissal claim.

If there are unusual circumstances in the case, such as a police investigation into the same matter, or you are concerned about a possible delay in an investigation you should seek advice from Kingfisher Professional Services Ltd on the facts of your situation.

 

Make sure the investigation is reasonable and appropriate

There is no set timescale for completing an investigation; the length of time it takes and the breadth of the investigation will depend on the facts of your particular case. What your investigation will involve will depend on the situation at hand but it may include some or all of the following:

  • Taking witness statements
  • Reviewing relevant policies and procedures
  • Reviewing correspondence
  • Reviewing company records/files
  • Identifying training the employee has received

As part of the investigation, you will usually need to have an investigation meeting with the employee who is suspected of the wrongdoing. This is NOT a disciplinary hearing, the meeting is a fact finding meeting the purpose of which is to obtain relevant information from the employee and to ascertain their version of events.

 

Document the investigation

Don’t forget to document your investigation and keep copies of all the evidence – it is vital.  If disciplinary action is taken, it will be based on the evidence obtained in your investigation.

It should also be borne in mind that if ultimately an employee is dismissed, demonstrating that a reasonable and appropriate investigation was undertaken will be part of showing a dismissal was far if required.

If you are concerned about a possible conduct issue in your workplace, please contact Kingfisher Professional Services Ltd for specific advice on the facts of your case before taking any action.

If you would like advice on any employment law matter, please do not hesitate to contact us as we are happy to help.

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