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.

Often, a workplace investigation needs delicate handling, to ensure the appropriate balance is struck between the integrity of the process and the broader imperative to protect the company's interests. Here, we explore the key aspects of managing this balance effectively.

Understanding Fair Process

It is imperative to a fair process that the employer  approaches any workplace investigation without any bias (or appearance of bias). Care must be taken to ensure that the investigator is skilled at conducting the process, entirely detached from the issues being investigated and able to reach conclusions solely on the evidence (without fear or favour).  

A fair process is essential for several reasons:

1. Trust and Credibility: Employees who raise concerns need to trust that they will be handled fairly and taken seriously. Employees who are the subject of allegations need to have confidence that they will get a fair hearing.  A well-managed workplace investigation reassures employees that their case will be evaluated objectively.

2. Legal Compliance: An unfair, incomplete or biased investigation can lead to flawed conclusions and expose the employer to the risk of a successful legal challenge. A properly-conducted investigation reduces the risk of litigation, saves legal costs and management time and (in some sectors) helps to avoid regulatory breaches.

3. Organisational Culture: Promoting fairness and impartiality reinforces a positive workplace culture, demonstrating to staff that the organisation remains true to its stated values.

Protecting Company Interests

A fair workplace investigation process will also assist any employer in protecting its broader interests. These include upholding the organisation's reputation, ensuring operational efficiency, promoting retention of valued employees and reducing legal risk. In practice, this means:

1. Choosing the Right Investigator: Selecting an unbiased investigator is vital. This person should have no stake in the outcome and should possess the skills and experience necessary to conduct a thorough investigation. This could be a manager, HR professional or in-house lawyer with up-to-date training on how to collate, analyse and present evidence. In some cases, it may be appropriate to appoint an external investigator, such as an HR consultant or employment lawyer.

2. Adopting Clear Policies and Procedures: Establishing clear investigation protocols helps maintain consistency, fairness and confidence in the process. These should be explained clearly in any disciplinary, grievance, whistleblowing or other relevant policy. A well-structured policy will provide guidance on the typical steps to be taken (but with sufficient flexibility to allow tailoring to particular circumstances), indicative timelines, and a statement of the rights and responsibilities of all parties involved. Policies and procedures should be reviewed and updated regularly, to meet the needs of the organisation and ensure legal compliance.

3. Maintaining Confidentiality: The integrity of any workplace investigation hinges on ensuring that confidential and sensitive matters are handled with appropriate care and with due respect for the privacy of those involved. In some instances, witnesses may wish to remain anonymous – and any such request should be given careful consideration, whilst balancing it carefully against the ability of an employee accused of wrongdoing to understand the case against them.

4. Ensuring Timely Action: Employers should start any workplace investigation promptly and aim for it to be concluded as expediently as possible, whilst avoiding excessive haste that could prejudice the fairness of the outcome. Unnecessary delays can exacerbate problems and increase the risk of further employee relations issues.

Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.

We offer a range of services, so please contact our friendly customer services team to discuss further via hello@kilgannonlaw.co.uk or 0800 915 7777.

This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice 21.06.24