Our latest article in the HR Improve series is focused on workplace investigations, and the steps which employers can take to conduct an effective investigation process.

Fairness

One of the key steps to ensuring that a fair process is followed during a grievance or disciplinary procedure, is carrying out a reasonable investigation to establish all of the relevant facts of the case and whether further action is required. Failure to do so could result in an employer facing costly legal fees and a potential Employment Tribunal claim.

While an organisation may follow their own workplace investigation process, as a minimum, workplace investigations need to meet the requirements under the ACAS Code of Practice on disciplinary and grievance procedures to be deemed fair and lawful. Any unreasonable failure to follow this may result in an increase in an award for compensation by up to 25% if an employee successfully brings a claim of unfair dismissal. 

So, what steps can employers take to ensure that they conduct a fair but effective workplace investigation?

Establish the terms of reference. 

Having a well-drafted terms of reference from the outset of the investigation is important to ensuring fairness and transparency. These should include a clear summary of the allegations being investigated, as well as setting out how the investigation will be conducted and what internal policies are engaged. By establishing the purpose and scope of the investigation from the beginning of the process, this will ensure focus on the issue being investigated and provide clear perimeters for the investigator. 

Nominate the investigator.

As an investigator must act fairly and objectively, there are a number of matters an employer should consider when making their selection:

• the investigator must be independent from the allegations that are being investigated and should not otherwise have a conflict of interest in the matter 
• depending on the seriousness and/or complexity of the matter, an investigator may require a certain level of experience to conduct a fair procedure 
• the investigator must be sufficiently senior to conduct the investigation. The appropriate level will usually depend on the seniority of the individuals who are the subject of the allegation or complaint. Internal policies may also require someone of a certain level of seniority carry out an investigation

There should always be a distinction between the workplace investigation and any subsequent disciplinary action, and therefore, where possible, they should be carried out by different people.

Prepare for the investigation.

Informing the employee

Unless there is a risk that the employee being investigated may interfere with evidence or witnesses, they should be informed of the investigation as soon as possible. The employee being investigated should be advised that they are under investigation and the reasons for this, including who is investigating, anticipated timescales, the importance of keeping the information confidential, next steps and whether disciplinary action is a potential outcome. 

Suspending an employee? 

Suspension should only be considered if it is required to protect the investigation process, the organisation, other employees, or the employee under investigation. 

Suspension should not be seen by an employer as a form of punishment for the employee, but as a means of carrying out an investigation without obstruction as quickly as possible in certain circumstances. If an employee is suspended during the investigation, they should be told that it is not a form of disciplinary action and informed of what their rights are during this period, including that they will continue to receive their normal pay and benefits. Suspension should always be handled sensitively to avoid giving the impression of having pre-determined the employee’s guilt.

Sources of evidence 

The amount of investigation required will vary depending on the individual circumstances of the case. However, an employer should carry out such investigation as is reasonable in all the circumstances. When gathering evidence an investigator should remember that their role is to establish the facts of the case. This will involve gathering evidence that may support the accused employee's version of events, not just evidence that may support the allegations or complaint that has been raised. Consequently, witnesses who may support the employee's version of events should be interviewed as part of the investigation process. This will help to identify the true facts of the case, while keeping the investigation impartial and fair. 

Hold an investigation meeting.

The investigation meeting should be held without unreasonable delay and all parties should make every effort to attend. 

Right to be accompanied 

An employee has the right to be accompanied by a companion to a meeting or hearing on a grievance issue. However, if the issue relates to a disciplinary matter, the employee only has a right to be accompanied to a hearing or meeting where a formal warning is to be given or other disciplinary action is going to be taken. As a result, there is no legal requirement for an employee to be accompanied at a disciplinary investigation meeting.

Even though there is no statutory right to be accompanied at a disciplinary investigation meeting, employees may still be allowed to be accompanied under:

• the employer’s own discipline and grievance procedures; and
• the Equality Act 2010 - as a reasonable adjustment for a disabled employee

Consideration should be given to these when inviting the employee to the disciplinary investigation. Failure to do so could result in the disciplinary investigation being regarded as unfair and in breach of contract where the employer’s own procedures provide for a companion and are contractual in nature. 

Absence from the investigation meeting

If an employee fails to attend the investigation meeting, it should initially be rearranged. The employer or person investigating should see if it would help to make other arrangements, such as moving an in person meeting to an online video call, or if reasonable adjustments are required to accommodate the employee’s attendance.
If the employee continues to refuse to attend the meeting, the investigator may need to look at all the other evidence and make a reasonable decision from the information they already have in their possession. If the investigation is continued without the employee, the investigator must tell the employee and carry out the investigation in as full and fair a way as possible.

Reporting the investigation findings.

Once the investigation has been concluded, the investigator should produce an investigation report summarising the steps taken, the evidence obtained and explaining their findings based on that evidence. This should also include all the facts that were and were not established and whether there are any mitigating factors that require consideration. 

The report should be written objectively and refer to facts only. It should not comment on the guilt or otherwise of the employee in question; this is not within the remit of the investigator’s role but rather is something that will need to be considered by the disciplining officer following a disciplinary hearing.