Tips for Conducting Fair Workplace Investigations

If you need to conduct a workplace investigation, there’s already plenty to think about.  The growth of remote working has created a further layer of considerations for businesses.

These tips from our Claimant lawyer Tamsin James will help ensure you conduct effective workplace investigations – and that you get them right first time.

1. The start point – good preparation and planning

As with many things, planning is critical for a thorough investigation.  Establish the scope, methods and purpose of the investigation (its ‘terms of reference’).  This approach ensures transparency and fairness and should include considerations of;

• know exactly what you are investigating
• who will investigate? (see more about this below)
• how it will be conducted & what will be covered by the investigation?
• identify the witnesses, where they are based (are they on site or remote?) and how you will  interview them (given that some may not be office-based).  You’ll want to give thought to any adjustments which might be required for certain witnesses such as those with a disability (including those with neurodiverse conditions).
• how you’ll collect, analyse and store evidence in data form
• which of your policies will be relevant?
• target time-frames
• the investigator’s role and responsibilities
• how the findings will be presented and to whom
• whether the findings and evidence will be disclosed in full to the person making the complaint (or who is subject to the complaint). If there any concerns about confidentiality, or a resistance to full transparency, identify and make clear at an early stage.

Evidence is important in any investigation so think carefully about how you’ll analyse all your sources and types of evidence (see below for more on remote evidence and data).  At some point in the investigation, the terms of reference may need to change but even so, make sure your investigator does not exceed their remit.

The investigator, if internal, may need to spend a considerable amount of their time running the investigation to produce a detailed report of value.  If so, their day job may need re-allocating elsewhere.

2. Who will investigate?

Whoever you call on to investigate your workplace issue should be suitably trained to conduct a robust investigation. Training should be frequently refreshed.

Running a good investigation is not easy so choose your investigator particularly carefully.  Allegations can be complex with multiple sources of evidence to consider.  The findings need to be carefully documented.   You also need to ensure there is no actual or perceived conflict of interest for the investigator.  They should not have been involved in any way in the allegation(s) being investigated, they must be able to (and be seen to be able to) act objectively and fairly to establish the facts and there must be an absence of actual and perceived bias.  It should be clear that the outcome is not pre-determined and that the investigator has the confidence and authority to make independent findings.  Their understanding of the need for confidentiality is also important.

3. What are the risks for an employer if the investigation is not conducted properly?

An investigation is part of following a fair procedure.  The legal test is that your investigation should be “reasonable in all the circumstances”.  If a decision is found to be unfair in a disciplinary and grievance case, it could have legal and financial consequences for your organisation.

More importantly, a well conducted and thorough, fair and transparent investigation of an incident, a concern, a grievance or an issue can lead to an earlier conclusion or resolution.  A badly-handled, biased or poorly-evidenced decision can increase feelings of concern, upset and anger.  Ultimately it’s often these, in our experience, that lead to escalation and to litigation.

These are some of the reasons why your investigators should be well trained but also why  businesses are increasingly appointing external workplace investigators rather than relying on  internal ones.

4. Don’t hang around

Avoid delays to the investigation unless they are genuinely unavoidable.  It is best practice for an investigation to have been authorised and completed within 3-4 weeks of an issue being flagged.  Delays could allow an investigation to be labelled as procedurally unfair but delays also risk memories fading (or changing!) and physical evidence getting lost.  Sometimes the wrong people becoming disengaged, unproductive or leave altogether if a process takes too long.

5. Some ‘remote’ considerations

Although the pandemic meant many investigations had to be conducted remotely, the increase in home and hybrid working makes remote investigations increasingly common.  Additionally, the evidence you will be considering will have ‘remote’ factors.  These are some of the things you might want to keep in mind;

• Remote interviews require a different approach – is the interviewee alone and in a private space? Are they recording covertly? How many people can reasonably be in the interview? Is the line secure? Are they actually stationary and not driving?! Screentime is very tiring for some, you may need to put frequent breaks in place in the case of lengthy interviews. Typing your notes simultaneously could be very distracting – make liberal use of the mute button!
• Clear communication is key in remote interviews – be mindful of connection issues, sound quality, the need to speak more slowly and clearly than maybe you would need to if you in the same room. The interviewee must understand the process, be made to feel comfortable and able to ask questions. Non-visual signals may be needed – instead of nodding, you might need to say ‘I understand’ or ‘thanks for expanding’ (especially if notes are being taken by the interviewer and they are looking down a lot).
• Collection and preservation of remote data & evidence – remote working, the rise of BYOD (bring your own device), multiple devices and storage all present their own challenges here – not forgetting the extra time required to collect and locate it. Do your policies allow you to ask employees for their data, including that on personal devices and apps?  Think about the amount of messaging which may be on WhatsApp and other messaging apps. Employees may also have concerns about their own privacy if it’s a device for personal use as well as work use. How will their privacy be protected?

The appeal of time and cost savings plus the growth in remote working means remote investigations are here to stay.  Businesses will need to take a more ‘technology-driven’ approach to managing investigations and will require up to date policies to ensure they can both collect and preserve relevant data and documents.  Investment in training your investigators well and keeping their skills up to date will become even more important.

If you are unsure if you need an investigation, or if you want to understand more about the process involved, read more here about what an external investigation involves.

If you would like to train your investigators or if you want a workplace issue investigated by an external expert, we’d love to discuss our approach and how we can help you.