Workplace investigations

Organisational preparation

The ACAS Code of Practice on Disciplinary and Grievance Procedures emphasises the importance of carrying out necessary workplace investigations of potential disciplinary matters without unreasonable delay in order to establish the facts of the case. This is an important step employers often either overlook entirely or do not handle properly. This ACAS guidance is, therefore, welcome and worthy of careful consideration.

It is possible to settle most problems quickly and without undue process. An employer should therefore consider whether a quiet word or informal action might be all that is required to resolve a matter.

If an informal chat is not practical or possible, the employer should consider a number of factors before commencing an investigation:

• Will a preliminary investigation help?
• Does the matter warrant further action?
• Do any internal policies or procedures require an investigation?
• Should the employer suspend the subject(s) of the investigation pending its outcome?

An employer should act promptly if an investigation is necessary. Upon instigating an investigation, an employer should decide the precise purpose and scope of the investigation, how long it will take, who should oversee the matter within the organisation and who should be the investigator.

Keep an investigation confidential. You may put temporary measures in place while you conduct the investigation, such as suspension or employee transfer.

Unless there is a contractual right to suspend an employee without pay (which would be unusual), the suspension should always be on full pay and confirmed in writing, with a clarification that the suspension does not connote guilt or any indication of the likely outcome of the investigation.

Investigator’s preparation

Once you have decided to conduct an investigation, it may be beneficial to create an investigation plan to follow, providing a structured approach. Preparation may include:

• Checking internal policies and procedures.
• Identifying sources of evidence.
• Identifying the parties relevant to the investigation.
• Deciding in what order to collect evidence.
• Arranging where meetings should take place.
• Contacting the relevant parties and their managers.
• Keeping managers informed of the process.

Handling a workplace investigation meeting

While investigation meetings are often needed, some workplace investigations only require collecting written and physical evidence. An investigation meeting is an opportunity for an investigator to interview the individual involved or someone with information relating to the matter under investigation.

Although there is no statutory right for an employee to be accompanied at an investigation meeting (as it is not a disciplinary meeting), not being accompanied could leave the individual at an unfair disadvantage and may be provided for in a workplace policy. Therefore, it is often safer to offer the employee the option of having a fellow employee accompany him or her at an investigatory meeting, particularly if the facts under investigation are serious in nature.

Gathering evidence

Any investigator appointed should, insofar as possible, be unconnected with matters under investigation. The investigator should remember their role is to establish the facts of the matter. They should consider evidence that supports the allegations and that undermines them. Once collected, an investigator should analyse each piece of evidence objectively and consider:

• What does the evidence reveal?
• Are there any doubts over the credibility and reliability of the evidence?
• Is the evidence supported or contradicted by any other evidence?
• Do the results suggest further evidence needs collecting?
• Should they prepare written witness statements?

Evidence to consider collating includes witness statements, written records and documentation (e.g. attendance sheets and paper copies of electronic material), physical evidence (e.g. CCTV, computer and phone records) and searches of personal possessions.

If the investigator needs to prepare and rely on witness statements, it may take further investigation to verify or undermine the information given. The investigator may also need to make omissions to avoid the identification of the witnesses.

Writing a workplace investigation report

It may be helpful if the investigating officer prepares a report summarising the steps taken in the workplace investigation, the investigations, and the evidence available regarding them. Such a report might assist with the conduct of the disciplinary hearing. Any investigation report should cover all the facts that were and were not established and whether there were any mitigating circumstances to consider. To exclude any information may leave an investigation open to accusations of bias and filtering evidence to suit one’s findings.

The report should reflect the investigator’s own conclusions. While an investigator may seek advice from a third party, such as HR, the conclusions should be theirs.

An investigator will often be asked to make a recommendation. Any recommendation should be restricted to suggesting whether any further action may be necessary or beneficial. In most circumstances, an investigator should recommend:

It is important to note that it should be the decision maker, not the investigator, who decides whether or not a disciplinary hearing will be held.

After a workplace investigation completes

Once an investigator completes their investigation and hands in their report, they will not usually be involved in further action other than the following possible matters:

• Discussing the report in person with the individual/panel they report to.
• Attending the disciplinary hearing.
• Advising on any amendments or updates to the organisation’s policies and procedures.

There will usually be a need to retain investigation reports for a period. The report should be securely disposed of once it becomes irrelevant or outdated.

Contact Karen Cole if you require any help with a workplace investigation.

Note: This article is not legal advice; it provides information of general interest about current legal issues.