Employee Investigations – top tips for avoiding unfairness and injunctions.

A thorough investigation of a grievance or a disciplinary matter is crucial to determining the outcome of internal proceedings and Tribunal claims and general fairness in the way staff are treated. However most organisations press busy, untrained managers and executives into the role of investigator and even those HR professionals supporting the investigator will often not have received any formal training on how to deal with the tricky issues and judgements that invariably arise in most cases. One thought is that fully trained HR Professionals should act as dedicated investigators with managers reserved as hearings and appeals officers to decide the issues based on the case presented to them. The scrutiny under which an Employment Tribunal will inspect the investigatory evidence is significant. The employee’s explanations and defences must be as carefully looked into as much as the original allegations. Witness statements can be unhelpful as compared with interview notes and the issue of recording meetings is becoming more challenging with the advance of technology with Tribunals ready to hear all evidence including that which has been covertly obtained or includes the deliberations of disciplinary panels. There are numerous minefields to overcome to make a case fair and it all starts with a really good investigation.

In my experience of legal practice I have discovered that many HR professionals have adopted processes and have fairly confirmed views on how things should be done which if tested in a Tribunal are in my view unlikely to be condoned. Questions such as what is the key difference between a grievance and a disciplinary investigation? can employee representatives attend grievance investigation meetings but not disciplinary investigations?, what can employee representatives say and do or not say and do in an investigation meeting?, what and when can you allow witnesses to remain anonymous and what do you say to a witness who says at the end of an interview that they don’t want to be a witness or cooperate any further? and how much of the evidence should you let an alleged “perpetrator” see or know about in advance of an investigation meeting? need to be answered correctly and fairly if an employer is to avoid the risk of constructive unfair dismissal as well as a later finding of unfair dismissal. In addition since the case of West London Mental Health NHS Trust v Chhabra which was decided by the Supreme Court at the end of last year employers also need to be more wary of being the subject of injunctive action. Injunctive action is a powerful tool in an employee’s armoury. If successful an employee may persuade a High Court Judge to halt proceedings against them, rehear or redo an investigation or disciplinary hearing, drop certain allegations and even reinstate them following a dismissal. Certainly injunctive action will significantly delay a case and give rise to unwanted publicity and legal costs which may not to be insured for those employers who have taken out Tribunal insurance cover. The key point is that even where the procedures you operate are not contractual the implied term of trust and confidence requires fairness in the detail of how you go about the investigation, disciplinary and grievance processes.

So to learn how to avoid some of the key pitfalls and ensure that your organisation is best placed to avoid injunctions and findings of unfairness come along to the next HR Forum presented by myself and my colleagues from Birketts employment team on Wednesday10 September from 2pm at Dunston Hall. I can guarantee that it will help you reassess and re-appraise the way you go about things.