Insights and News

Documenting a workplace investigation is not just a procedural formality; it is a critical part of legal compliance that ensures transparency and fairness, and reduces legal risk. Each stage of the investigation should be properly documented, to ensure a well-managed process. This will typically start with a detailed investigation scope, which sets out the issues to be investigated, any likely sources of evidence (such as relevant documents, correspondence, policies or witnesses) and, importantly, what precisely the investigator is being asked to do.

When serious disciplinary allegations, employee complaints or whistleblowing concerns arise, the first question a business will need to consider is how best to conduct a thorough and fair investigation.

It may seem that there is an obvious answer to this question, but in some cases appointing a truly impartial investigator can assume secondary importance to other business priorities. The financial costs in setting up and running a thorough process (particularly if an independent external investigator is appointed), the HR and management time involved in collating evidence and the anticipated disruption in the workplace can lead to a temptation to cut corners.

In the UK, workplace investigations will typically involve an assessment of whether, on the evidence available, certain facts can be shown to have happened on “the balance of probabilities”. This is a standard of proof that is less stringent than "beyond reasonable doubt", which is usually reserved for determining culpability under criminal law. Essentially,it requires the investigator to be satisfied that an event is more likely than not to have occurred.

Harassment and bullying in the workplace can create a toxic work environment that erodes employee morale, resulting in increased staff turnover and potential exposure to legal and reputational risk. These risks can be mitigated through thorough, prompt and fair workplace investigations. This article explores the steps involved in a well-run workplace investigation, with a particular focus on harassment and bullying allegations.

Encouraging employees to voice their concerns and feedback without fear of retaliation promotes a healthy work environment. It alerts an employer to any significant issues that might cause disruption in the workplace, reputational damage or potential harm to employee or customer relations, allowing it to deploy appropriate measures quickly to mitigate those risks. Depending on the nature of the concerns raised, this could involve anything from swift informal action in preventing minor issues from escalating, to workplace mediation or an independent workplace investigation.

Sensitive workplace issues such as allegations of bullying, discrimination complaints, policy breaches, or whistleblowing require very careful handling and can expose employers to significant risks. If not managed properly, they can give rise to legal claims from employees who may be the alleged victims of poor treatment, or alleged perpetrators who have been dismissed without a fair process.

Most employers will, from time to time, encounter situations which require a thorough workplace investigation. Even organisations with a proven track record of strong employee relations and fostering an inclusive culture may need to address allegations of employee misconduct, harassment, discrimination, or policy violations. Indeed, the way in which those processes are run will, of itself, say much about an employer’s approach to maintaining a supportive working environment and promoting trust across the workforce.

A tribunal found that the Trades Union Congress (TUC) dismissed employees Darren Lewis and Greg Lepiarz without reasonable grounds, citing significant investigative failures. Represented by Gerard Airey and Paul Livingston, the claimants argued that the TUC's investigation was inadequate, relied on inconsistent evidence, and was compromised by a conflict of interest involving Paul Nowak. The tribunal also noted a lack of concrete evidence and breaches of the ACAS Code of Practice. This verdict has tarnished the TUC's reputation, prompting calls for union support to reinstate the dismissed employees.