Lorna Townsned, Senior Associate, Birketts
Conducting a fair and thorough investigation into disciplinary allegations or an employee’s grievance will often resolve the matter. In the event that it reaches an employment tribunal, it is fundamental to the outcome of a case.
A good workplace investigation requires careful thought and planning, elements that are often overlooked in the rush to get things underway. The Acas Code of Practice on Disciplinary and Grievance Procedures emphasises the importance of acting promptly and without delay. However, the temptation to ‘plunge in’ should be avoided in order that proper consideration can be given to a number of issues, including the crucial question of who will be appointed to conduct the investigation.
· Terms of reference: consider whether terms of reference need to be drawn up, setting out clearly the matters to be investigated, and the role and responsibilities of the investigator. This is particularly recommended if the investigation is complicated and/or covers multiple allegations or grievances dating back a number of years. Bear in mind that the terms of reference may need to be amended during the course of the investigation.
· Policies and procedures: the need to review relevant policies and procedures may sound like an obvious one, but it is often overlooked at this early stage. Check in particular any specified timescales. If the timescale set out in your policy is unrealistic in the circumstances (as is often the case), inform the relevant parties and provide a best estimate of a realistic timeframe, updating them as necessary as matters proceed.
· The investigator: deciding who is an appropriate person to conduct the investigation will require consideration of a number of factors, including:
o the level of complexity of the matter
o which individuals may be called upon to participate at later stages in the process (such as the disciplinary and appeal hearings)
o who has the requisite training, skills and personal attributes
o whether the individual has sufficient capacity to devote the time necessary to complete the investigation properly
o whether the appointment of an independent external investigator is desirable, particularly in complex cases and if there is no-one internally with the suitable skills and/or time available.
Once an investigator has been appointed, they will need to consider some important practical issues before embarking on the investigation.
Investigations often involve numerous witness statements and copious numbers of documents. In order to keep on top of the process, it is essential that all relevant documents are organised into an appropriate filing system from the outset. This should be stored securely in order to maintain maximum levels of confidentiality.
Confidentiality is a frequent issue that arises in relation to workplace investigations. The investigator should ensure that appropriate warnings are given in advance to witnesses regarding the need for confidentiality. It may be necessary to inform them that a failure to maintain confidentiality could result in disciplinary action.
Consideration also needs to be given at an early stage as to whether a note-taker is required to attend witness interviews along with the investigator, or whether the interview will be recorded. If using a note-taker, ensure that it is someone with the requisite skills to take an accurate and comprehensive note of the interview. Recording the interview can help avoid disputes arising at a later stage over exactly what the witness said.
During the course of the investigation, the investigator should ensure that he/she gathers in all the relevant evidence and meets with all the appropriate witnesses. The scope of an investigation will frequently change as it progresses, so the investigator should not approach the task with a fixed mindset. A common error is not to revert to witnesses with further questions or to consider additional evidence that may come to light during the investigation. An open mind is one of the key factors in establishing fairness.
