Workplace Investigations 101: An Employer's Essential Guide
Even within well-run, sophisticated organisations with a positive and respectful culture, grievances, disciplinary issues and whistleblowing concerns can arise from time to time. They will often involve senior stakeholders and decision-makers or raise issues of particular sensitivity. It is therefore paramount for employers to ensure that they are well-equipped to conduct thorough workplace investigations to address issues promptly, identify potential legal and commercial risk and ensure a fair outcome for everyone involved.
Why Do Investigations Matter?
Legal Obligation: UK employment law places a duty of care on employers. You must take reasonable steps to protect employees from harm, including harassment, discrimination, and unsafe work environments. Where allegations arise which suggest that such legal obligations may have been breached, a thorough workplace investigation enables you to fully understand any potential issues, reduce the likelihood of legal disputes and demonstrate that you are taking all necessary steps to comply with your legal duties.
Vicarious Liability: Employers are held legally responsible for any act (or failure to act) by an employee in the course of their employment. Inappropriate behaviour by employees creates exposure to legal liability, for which the employer could be held liable. A detailed and independent workplace investigation can assist in identifying any potential vicarious liability.
Proactive Risk Management: Unresolved employee relations issues can fester, create a toxic working environment, damage morale, and increase your risk of costly employment claims. A prompt and independent workplace investigation allows you to address work disputes before they escalate. While many people focus on the employee raising a grievance, thought also needs to be given to other colleagues who will be impacted by the situation. Everyone involved will likely want to see the employer take swift and fair action and appointing an independent workplace investigator will demonstrate your commitment to this.
Maintaining Fair Processes: A thorough workplace investigation goes a long way towards demonstrating a commitment to dealing with workplace issues fairly, even when handling difficult situations and sensitive issues. The failure to follow a fair process can result in an increased risk of unfair dismissal, discrimination and whistleblowing claims – and potentially lead to an uplift in compensation, where the minimum requirements of the ACAS Code of Disciplinary and Grievance Procedures are not met.
Limits Increased Compensation: Employees who raise grievances alleging illegal activity (whistleblowing) or discrimination are respectively known as a ‘Protected Disclosure’ and a ‘Protected Act’. Once either is made, the employee is afforded additional protection. Any detrimental/unfavourable treatment that follows the grievance – like a poor investigational and grievance outcome, risks giving the employee a further claim for detrimental treatment (for whistleblowing) or Victimisation (for discrimination), which could result in additional compensation being awarded. A thorough and fair investigation that aids a reasonable grievance outcome should help limit this exposure.
Key Steps in a Workplace Investigation
1. Initial Assessment: Upon receiving any complaint/grievance, assess the nature and severity of the allegations. Does it contain allegations of illegal activity (whistleblowing) or discrimination? Is it made against senior members of staff? This will help determine the scope of the investigation and the appropriate person to chair it.
2. Appoint an Investigator: Choose someone with the appropriate skills and experience. This could be someone internal (for example, a member of the HR team or a senior manager who is not otherwise involved in the matter and of the same or more seniority). In some cases, it will be advisable to appoint an external, independent investigator – for example, where allegations are particularly sensitive, senior or influential people within the organisation are implicated or the volume and complexity of the evidence otherwise warrants an expert third party familiar with handling complex allegations and/or voluminous evidence. In all cases, impartiality is essential.
3. Plan the Investigation: Develop a plan that outlines the allegations, evidence to be gathered, witnesses to be interviewed, and estimated timelines. Identify clearly the scope of the investigation and what the investigator is required to do – for example, make findings of fact and/or recommendations.
4. Gather and Assess the Evidence: This will include following your policies and will likely include witness interviews, reviewing documents and assessing evidence; emails, instant messages or security footage.
5. Interviews: Interviews should be conducted fairly, allowing all parties involved to tell their side of the story in a safe environment, while keeping to the issues at hand. A detailed note of the discussion should be taken and sent to the interviewee for verification. Remember that an employee raising a grievance has the right to be accompanied to any investigation meeting.
6. Prepare the Report: Compile the findings in a clear report, outlining the evidence gathered, statements obtained, and, if appropriate, the investigator's clear and reasoned conclusions based on what they have been asked to look at, as part of the investigation scope.
7. Identify next steps: Based on the report, carefully consider what further steps (if any) are appropriate. This will likely mean concluding the process. It might also result in a decision to proceed with disciplinary procedures/a hearing. Depending on the nature of the matters raised and investigated, this may include recommendations for changing how things are done, training for staff or reporting matters to the authorities (HSE, ICO, Police, HMRC etc).
The ability to conduct fair and thorough workplace investigations is an increasingly important aspect of responsible employment practices. If you are unsure of your obligations, do not know how to proceed, require assistance in conducting an investigation, or need to discuss a specific situation, we recommend seeking professional advice at an early stage.
Contact Kilgannon & Partners Workplace Investigations for expert guidance. Call us on 01483 388901, email us at hello@kilgannonlaw.co.uk, or visit our website at www.workplaceinvestigations.co.uk