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 address 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. A workplace investigation can assist in identifying and mitigating such legal risks.
- 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 investigation allows you to address workplace disputes before they escalate.
- 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. 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 Disciplianmry and Grievance Procedures are not met.
Key Steps in a Workplace Investigation
- Initial Assessment: Upon receiving any complaint, assess the nature and severity of the allegations. This will help determine the scope of the investigation and the appropriate person to chair it.
- Appointing 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). 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. In all cases, impartiality is essential.
- Planning 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.
- Gathering and Assessing Evidence: This might include witness interviews, reviewing documents, policies, instant messages or security footage.
- Interviewing: Interviews should be conducted fairly, allowing all involved parties to tell their side of the story. 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.
- Preparing the Report: Compile the findings in a clear report, outlining the evidence, statements, and the investigator's clear and reasoned conclusions based on what they have been asked to look at, as part of the investigation scope.
- Identifying what next: Based on the report, carefully consider what further steps (if any) are appropriate. Depending on the nature of the matters being investigated, this may include recommendations for changing how things are done, training for staff or conducting a disciplinary hearing.
The ability to conduct fair and thorough workplace investigations is an increasingly important aspect of responsible employment practices. If you're unsure of your obligations, 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