Conducting Workplace Investigations
Employers should draw a clear distinction between the investigation process and a disciplinary procedure ideally by ensuring they are conducted by different people. Under the ACAS Code of Practice on Disciplinary and Grievance Procedures, employers should always conduct a disciplinary meeting. Failure to do so, even where there is seemingly incontrovertible evidence against an employee, will most likely result in a finding of unfair dismissal.
Employers must be able to:
- Establish they believed the employee to be guilty of misconduct;
- Show they had reasonable grounds for believing the employee was guilty of that misconduct; and
- Show that at the time they held that belief, they had carried out as much investigation as was reasonable.
Who should investigate?
The person conducting the investigation should, so far as it is possible, remain impartial and employers should be mindful of the ongoing working relationships within the organisation.
Questions employers should ask before deciding who should conduct a disciplinary investigation include:
- Who are the relevant witnesses?
- If the matter proceeds to the disciplinary stage, who will conduct those proceedings?
- If the individual appeals a decision taken at disciplinary stage, who will conduct that?
- Does the proposed investigator have the necessary level of authority to gather evidence?
- Do they have the appropriate experience?
- Have they had appropriate training, and do they know what is required of them?
- Does the person proposed work closely with any of the individuals in question, and will the working relationship between them, or the conduct of the investigation, be compromised as a result?
Biased Disciplinary Investigations
Biased disciplinary investigations can severely undermine the integrity and fairness of the workplace, leading to unjust outcomes and damaging employee trust and morale. When an investigation is conducted with preconceived notions or favouritism, it compromises the objectivity required to make impartial decisions. Such bias can result in unfair treatment, wrongful disciplinary actions, and potential legal challenges against the employer. To prevent bias, it is crucial to ensure that investigators are impartial, well-trained, and adhere strictly to company policies and legal standards. Implementing checks and balances, such as having multiple reviewers and allowing the accused to present their case, can help maintain the fairness and credibility of the investigation process.
Gathering Evidence
In gathering evidence, employers must bear in mind the purpose of the investigation, and the rights of the employee being investigated.
Throughout the investigation process employers should continually ask whether the evidence gathering is necessary for the purposes of the investigation and whether the way it is being obtained is reasonable and proportionate. Disproportionate investigations may result in an irretrievable breakdown in the employee/employer relationship leading to allegations of constructive dismissal.
Can Witnesses Remain Anonymous?
The Employment Tribunal has held it is permissible for witnesses to remain anonymous. Anonymity, however, cannot be guaranteed absolutely. There are circumstances in which disclosure will be necessary or required by law.
Conducting workplace investigations effectively is crucial for addressing grievances, disciplinary issues, and maintaining a fair and compliant workplace. At [Your Law Firm Name], we provide expert advice and guidance on managing workplace investigations, helping you navigate legal requirements and implement best practices. Below, we outline the key aspects of conducting workplace investigations, legal considerations, and strategies to ensure thorough and fair investigations.
Understanding Workplace Investigations
Workplace investigations are formal inquiries conducted to resolve issues such as employee complaints, allegations of misconduct, discrimination, harassment, and other workplace disputes. The goal is to establish the facts, ensure fair treatment for all parties, and make informed decisions based on evidence.
Key Components of Workplace Investigations
1. Clear Policies and Procedures
– Develop comprehensive investigation policies and procedures that outline the steps to be taken when an investigation is required.
– Ensure these policies are communicated clearly to all employees and included in the employee handbook.
2. Impartiality and Confidentiality
– Ensure investigations are conducted impartially and without bias.
– Maintain confidentiality throughout the investigation process to protect the privacy of all parties involved.
3. Trained Investigators
– Use trained and experienced investigators to conduct the investigation.
– Ensure investigators understand the legal requirements and best practices for conducting workplace investigations.
4. Thorough Documentation
– Keep detailed records of all steps taken during the investigation, including interviews, evidence collected, and decisions made.
– Ensure documentation is secure and only accessible to authorised personnel.
Legal Considerations in Workplace Investigations
1. Employment Contracts and Policies
– Ensure investigation procedures are clearly outlined in employment contracts and company policies.
– Regularly review and update contracts and policies to reflect any changes in legislation or company standards.
2. Fair Treatment
– Ensure all parties involved in the investigation are treated fairly and given the opportunity to present their side of the story.
– Avoid any actions that could be perceived as biased or discriminatory.
3. Data Protection
– Comply with the General Data Protection Regulation (GDPR) when handling personal data during the investigation.
– Keep investigation records confidential and secure.
4. Disciplinary and Grievance Procedures
– Follow the company’s disciplinary and grievance procedures when conducting investigations.
– Ensure these procedures are fair, transparent, and consistent with legal requirements.
Steps to Conduct a Workplace Investigation Effectively
1. Develop and Communicate Investigation Policies
– Create clear and comprehensive policies outlining the investigation process.
– Communicate these policies to all employees and ensure they understand their responsibilities.
2. Appoint a Trained Investigator
– Select a trained and impartial investigator to conduct the investigation.
– Consider using an external investigator for particularly complex or sensitive cases.
3. Plan the Investigation
– Outline the scope and objectives of the investigation.
– Develop a plan that includes identifying witnesses, collecting evidence, and setting timelines.
4. Conduct Interviews
– Interview the complainant, respondent, and any witnesses.
– Ask open-ended questions and allow interviewees to provide detailed responses.
– Record interviews accurately and maintain confidentiality.
5. Collect and Review Evidence
– Gather all relevant evidence, including documents, emails, and other records.
– Review the evidence thoroughly and objectively.
6. Analyse Findings
– Analyse the evidence and interview records to establish the facts.
– Consider the credibility of the evidence and the reliability of the witnesses.
7. Prepare an Investigation Report
– Prepare a detailed report outlining the investigation process, findings, and conclusions.
– Include recommendations for action based on the findings.
8. Make a Decision and Take Action
– Review the investigation report and make a decision based on the evidence.
– Take appropriate action, which may include disciplinary measures, training, or other corrective actions.
9. Communicate the Outcome
– Inform the complainant and respondent of the investigation outcome.
– Provide feedback and support to all parties involved.
10. Follow-Up and Review
– Monitor the situation to ensure the issue has been resolved.
– Review the investigation process and make any necessary improvements.
Handling Specific Situations
1. Discrimination and Harassment
– Conduct investigations into allegations of discrimination and harassment promptly and sensitively.
– Ensure a safe and supportive environment for discussing sensitive issues.
2. Misconduct and Disciplinary Issues
– Address allegations of misconduct or disciplinary issues through a fair and thorough investigation process.
– Ensure all relevant evidence is considered before making a decision.
3. Grievances and Complaints
– Investigate employee grievances and complaints impartially and thoroughly.
– Provide a clear and fair resolution to the issues raised.
4. Whistleblowing
– Handle whistleblowing investigations confidentially and protect whistleblowers from retaliation.
– Ensure compliance with the Public Interest Disclosure Act 1998.
Conclusion
Managing workplace investigations effectively is essential for maintaining a fair and compliant work environment. Our team of experienced employment law experts is here to provide you with the guidance and support you need to conduct thorough and fair investigations.
