Workplace investigations must be conducted correctly to avoid legal and reputational repercussions. Our independent HR investigators can help.
The purpose of an HR investigation is to enable the employer to understand the full facts of a matter or incident and allow fair, objective and informed decision-making to bring the matter to a conclusion.
But workplace investigations present considerable risks for employers.
HR investigations have to be handled fairly and employers should follow ACAS guidance on disciplinary and grievance matters.
Maintaining a sensitive, unbiased and non- confrontational approach during the investigation process will encourage your employees to address their concerns freely and without fear of retaliation.
Mishandling an employment investigation can influence the outcome and impact of a workplace dispute, and the process followed may be subject to future scrutiny should the matter result in a tribunal claim.
Failure to follow a proper and consistent investigation process can lead to tribunal claims and allegations of unlawful discrimination, detriment on the grounds of whistleblowing, data protection breaches and defamation.
Handling workplace investigations correctly is not only a legal obligation; consistent and fair treatment of employment investigations is important in promoting positive workforce relations.
At DavidsonMorris, we have substantial experience in supporting employers with all types of workplace investigations.
As experienced independent HR investigators, we help employers comply with their legal obligations while supporting positive workforce relations.
Acting in an ethnical, transparent manner and with the utmost care and confidentiality, our team of specialist employment lawyers and HR professionals provide a fully comprehensive independent investigation service covering all manner of workplace disputes and allegations including:
We bring together an in-depth understanding of the ACAS guidance with technical employment law knowledge on issues such as legal privilege to deliver a transparent, robust and cost-effective investigation on your behalf:
Whether you’re a large organisation and your HR team does not have the capacity to take on an investigation, or if you’re a smaller employer without the expertise to conduct a fair investigation, we can help.
We will carry out the investigation efficiently and with minimal disruption to the organisation and present the findings within a comprehensive report with conclusions, which can be relied on by the organisation to make a fully informed decision on the matter.
For more information about our workplace investigation services, contact us.
When a potential misconduct issue arises in the workplace, the first step in managing the situation is to conduct an investigation to determine the facts of the case. This is essential for the employer to act fairly and reduce the risk of claims of unfair dismissal.
A disciplinary investigation is conducted to determine the facts and circumstances surrounding an employee’s alleged misconduct.
Its primary objective is to collect all evidence and documentation that may be relevant to the allegations, and for the investigator to make a recommendation as to whether the employee has a case to answer and whether the matter warrants a formal disciplinary hearing in accordance with the employer’s formal disciplinary procedure.
Failure to comply with the Acas Code, which was issued under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A 1992), does not automatically render an employer liable in any proceedings brought against it. However, an employment tribunal will consider the Acas Code when determining whether an employer has behaved fairly, and has the authority to increase awards by up to 25% if it believes an employer has failed to comply with the Acas Code’s provisions.
In cases where there are claims for both wrongful and unfair dismissal, even if the employment tribunal rejects the unfair dismissal claim, procedural breaches of the Acas Code relating to the employer’s investigation and disciplinary process can still be considered when determining an increase to any wrongful dismissal award.
All necessary investigations of prospective disciplinary matters should be conducted expeditiously and without undue delay in order to determine the case’s facts.
A disciplinary investigation must always occur prior to any disciplinary hearing, and begin as soon as management becomes aware of an employee’s alleged misconduct.
There are many advantages to appointing an independent external investigator.
Appointing an external investigator ensures that complex employee relation matters are handled in a professional and timely manner, giving managers and employees confidence in an objective and well-planned process. It can also help improve employee trust and satisfaction, give confidence with complex or sensitive investigations and help safeguard company reputation.
Common scenarios where external investigators are appointed include:
When appointing an external investigator, it is essential that the investigation’s scope is set out in the terms of reference.
The current law regarding privilege and its application to investigations is complex. Typically, the most challenging privilege issue that arises during investigations involves witness interviews.
When a director or shareholder is the subject of an investigation, specific issues may also arise, as the law regarding their rights to privileged information deriving from their status differs from that of other workers, employees, or third parties. Consequently, care should be taken to minimise such entitlements in the context of an investigation.
Employers have to ensure careful coordination with HR and legal advisers regarding employment law risks and procedures, the impact of investigation work on potential tribunal claims, and the management of employee exits.
The disciplinary investigation procedure consists of the following steps:
Obtaining witness testimony
If there are witnesses to an incident of misconduct, their account of what events should be documented in a witness statement as soon as possible. In an investigation, it is crucial that all relevant witnesses provide statements, not just those who support the allegations against the employee.
The witness statement should be fact-based, not speculative or subjective, and should include the following:
A witness must sign and date their own witness statement.
Sometimes a witness may be unwilling to provide a statement. This is frequently the result of fear of retaliation or reluctance to become embroiled in a disciplinary matter. The investigator must always address any concerns and endeavour to allay any anxieties. No employee should be required to provide a witness statement by the employer.
Additionally, witnesses may be concerned about confidentiality. They should be informed that their statement may be used as evidence in the matter under investigation and, as such, may be viewed by the employee under investigation and any other parties involved in the subsequent disciplinary proceedings.
If a witness’s employment contract contains a confidentiality clause, it is best practice to remind them of their obligation to maintain the statement’s confidentiality.
Witnesses should also be made aware that any attempt to intentionally provide false or misleading information in a statement may constitute a disciplinary matter.
As part of the investigation, all witness statements should be thoroughly examined for inconsistencies, inaccuracies, and indications of collusion. Two witness statements that appear to correlate too closely may be indicative of witness collusion.
Conducting investigative interviews It may be necessary to conduct one or more investigative interviews with the employee accused of misconduct and/or witnesses to the incident. Such consultations may be necessary:
When conducting an interview with an employee or a witness, the investigator should do so in a private office where there will be no interruptions. Throughout the interview, the investigator must:
There is no statutory right for an employee to be accompanied to an investigative interview; however, consideration should be given to allowing an employee to be accompanied by a work colleague or trade union representative if this would be a reasonable adjustment.
It is not always necessary to conduct an interview with the employee under investigation because they will have the opportunity to present their case at any subsequent disciplinary hearing. However, such interviews can be beneficial, especially if there is reason to mistrust an employee’s honesty or integrity. Statements made during an early investigative interview may serve as a useful comparison to explanations provided after the investigation is concluded and all evidence has been disclosed. If an employer does not conduct an investigational meeting with the employee, that fact alone is insufficient to determine whether a subsequent termination was unfair. The question is whether or not the employer conducted a reasonable investigation given the circumstances.
Additional relevant documentary evidence should be collected. Examples include:
All pertinent documentation, such as witness statements and records of investigative interviews, should be compiled into a single file in a logical and (where applicable) chronological order to form a compilation of evidence.
Evaluating the evidence
The investigator should then examine the evidence package to confirm:
The investigator must recommend scheduling a disciplinary hearing if the evidence demonstrates:
If the evidence does not adequately support the aforementioned, the investigator must evaluate whether to conduct additional investigations, or to recommend no further action.
The investigator should make only suggestions. Their report should not contain any evaluative conclusions.
It is also not the investigator’s responsibility to make recommendations regarding the appropriate level of disciplinary action. Any evidence of this could suggest that the outcome of a subsequent disciplinary hearing was predetermined. Any evidence that the disciplinary hearing had been prejudged could result in a finding of unjust dismissal against the employer if the matter is subsequently reviewed by an Employment Tribunal.
If an investigator fails to communicate a material fact to the person who makes the decision to terminate an employee, this may affect the equity of the termination.
In certain circumstances, it may be necessary to suspend an employee as soon as an investigation reveals a serious matter that will or is likely to result in disciplinary action, even if the full investigation into the matter has not yet been completed.
According to the Acas guidance on suspension during an investigation at work, an employer should only consider suspension if it believes it is necessary to protect:
Before suspending an employee, the employer should conduct preliminary investigations to determine whether the allegations are supported by evidence and whether the suspension is warranted. An abrupt or ill-conceived suspension may result in a breach of contract claim.
In contrast, an unnecessary delay in suspending or failure to suspend an employee when there are pending allegations of gross misconduct against the employee may prejudice the employer’s case if the employee is subsequently dismissed without notice and submits a claim for unfair dismissal to an employment tribunal. If the employee was permitted to continue performing their duties right up until the date of their dismissal, it may be difficult to demonstrate that dismissal without notice was an appropriate disciplinary measure.
A workplace investigation is used to establish the facts relating to significant wrongdoing, misconduct or ethical lapses at work, usually as part of the organisation's grievance and disciplinary procedure. The investigation findings are used for the employer to make an informed decision on the matter.
Employers must ensure that the investigation process is fair and confidential, that any relevant internal policies are followed, that as much evidence and information is gathered as possible to support informed decision-making, and that the process is not designed to prove guilt but to establish full facts.
First, establish if an investigation is necessary, then scope out what is to be investigated before fact-finding and gathering evidence. The findings should form the basis of a report which the decision-maker uses to determine the outcome of the investigation, which may be disciplinary action or other relevant follow up activity.