In the modern workplace, maintaining a healthy, respectful and legally compliant environment is essential. However, from time to time, situations can arise that require formal investigation.
Workplace investigations play an important role in resolving disputes in the workplace. They can protect the interests of your business by identifying wrongdoings and supporting the employer with fair, objective and informed decision-making
However, workplace investigations can create legal risks and damage a business’s reputation if they’re handled poorly.
Every investigation is different and will be unique to your business, but there are a few general guidelines you should follow to manage risk and safeguard positive workplace relations.
This guide will provide you with the information you need to conduct a fair workplace investigation and ensure that your employee’s rights are protected throughout the workplace investigation process.
What is a workplace investigation?
A workplace investigation is a process designed to collect facts, determine whether any policies or laws have been violated, and decide on the appropriate actions. These investigations can be required for various reasons, including allegations of harassment, discrimination, fraud or any other misconduct. Sometimes referred to as ‘fact finding’ as the investigation is just that, an investigation to establish if something took place that needs to be taken further – and sometimes they don’t with no further action being required.
If you make a decision about a workplace disciplinary or grievance without completing a reasonable investigation, further decisions or actions taken can be rendered unfair or unlawful, which can expose you to the risk of legal action.
A properly conducted investigation will enable you to fully consider the matter and then make an informed decision.
Here are the steps that should always be followed when conducting a workplace investigation:
Step one: Decide whether an investigation is necessary (pre-investigation planning)
Before conducting a formal investigation, it’s important to understand whether the issue could be resolved through informal action. In many workplaces, issues can be settled quickly without a more formal process.
However, if you decide that a full investigation is required, you need to act quickly as any delays in the process can lead to a perception of unfairness.
Define the scope
You need to determine the purpose and scope of your investigation, or ‘terms of reference,’ which will set out the purpose of the investigation and the investigator’s role and responsibilities. Trusted HR has created a step-by-step guide with relevant templates to support managers through this, as although it may appear straightforward, there are key factors to consider.
The terms of reference should include:
- The issue the investigation will examine
- Whether a recommendation is needed
- How the investigator’s findings will be presented
- Who the findings will be reported to
- Who will be contacted for further advice
Choose an investigator
You will need an investigator to lead the investigation for you. You can use an internal team member but they must not be involved with or associated with any of the allegations being investigated. They will need to be able to provide that they have acted fairly and objectively to reach a conclusion by gathering evidence to both support and refute the allegation. The person(s) who are involved in the process after the investigation may also need to be independent, this in part will depend upon the terms of reference and the size of the Company.
Many organisations use an external investigator such as outsourced HR support to maintain objectivity.
Plan the process
You then need a step-by-step investigation plan as well as a timescale for completion. Your grievance or disciplinary procedures may already have suggested or required timescales so these should be followed. If you don’t, you will need to provide a provisional timeframe for the investigation’s completion. This may need to be adjusted so you can complete a thorough investigation.
Whilst investigations need to be completed quickly, they also need to be fair and reasonable to avoid an employment tribunal.
Step two: Prepare for the investigation & gather evidence
Your chosen investigator will then need to create an investigation plan including:
- A list of witnesses
- Evidence to be collated and examined
- Workplace policies or procedures that will be followed
- Recommendations that will be given
- An outline of the importance of confidentiality
- Other points or information that need to be included
Inform the employee
As long as there is no risk that the employee being investigated will tamper with evidence or witnesses, they will need to be informed as soon as it’s decided that an investigation will be opened.
Always explain the reasons for the investigation, who’s going to carry it out and the process you’re going to follow.
Does the employee need to be suspended?
In some cases, suspension may be needed in order to protect your organisation, employees, or the employee who is being investigated. However, this should not be used as disciplinary action and the employee should be made aware of this. Case law has established that more action is required by the employer than used to be the case to avoid suspension, this may include giving the employee other duties instead.
Gather evidence
Every investigation is different so the evidence required will vary from organisation to organisation and case to case.
Physical evidence can include:
- Witness statements
- Company emails
- CCTV footage
- Computer data
- Phone records
- Attendance records
Your investigator will need to understand how they will collate the evidence and ensure they’re following the law around data protection and other legal obligations of your business.
Speak to witnesses
You might need to interview witnesses or ask them to provide a formal statement. They should be asked to write their experience down whilst it’s fresh in their mind. If required, the investigator can meet with witnesses to talk about their experience and take notes. The witness will then need to read through the notes and sign them.
Step three: Hold the investigation meeting
Information may need to be collected from the employee and any witnesses and this can be gathered within an investigation meeting.
Your employee has the right to be accompanied to a meeting or hearing relating to a grievance issue. In a disciplinary matter, they are only entitled to be accompanied if after the investigation there is a recommendation to hold a disciplinary hearing where they will be invited to bring representation. There is no right to representation for the investigation meeting. However, best practice is to allow your employees to be accompanied in any hearing. This could be a colleague, a workplace trade union representative or an employed official of a trade union.
If your employee fails to turn up to the meeting, it should be rearranged to allow them to attend. However, if they continually fail to attend the meetings you arrange, the investigator might need to make a reasonable decision using the information they already have.
The investigation can continue without the employee but the investigator will need to keep them informed and ensure it’s carried out fully and fairly.
Step four: Analyse & report on findings
The investigator should objectively assess the evidence collected and look for any corroborative or contradictory information. They should then decide whether the investigations are substantiated or not and create a report on their findings.
The investigation report should include the facts established and whether any mitigating factors need to be considered. An investigator must reach their own conclusions about the case.
You can download an Acas investigation report template that can be adapted to your individual requirements. The report should only provide the facts along with any evidence that has been collected as part of the investigation.
Step five: Conclude the investigation
Anyone involved in the investigation should be informed of the outcome of the investigation whilst maintaining confidentiality.
The appropriate disciplinary actions will need to be taken which could include training, updates to company policies, or other corrective measures.
The situation should then be measured to ensure that the investigation has been effective and no further issues arise.
Employee rights during investigations
When conducting an investigation, it’s always essential to remember employee’s rights to ensure that you’re following the correct procedures and protecting both your organisation and your employees.
These include:
- Fair treatment: Ensure all employees are treated fairly and without bias.
- Right to representation: All employees have the right to be accompanied by a colleague or union representative during a disciplinary hearing
- Confidentiality: The confidentiality of all parties involved should be maintained to protect their privacy and the integrity of the investigation
- Right to respond: The accused employee should be provided with the opportunity to respond to any allegations and present their own side of the story.
The importance of a fair process
A fair and thorough workplace investigation process is not only a legal requirement in the UK, but it’s also vital for maintaining trust and integrity within your organisation. Ensuring fairness throughout the process can prevent potential legal claims and foster a positive workplace culture.
In summary…
Conducting effective workplace investigations requires careful planning, unbiased execution, and adherence to legal standards.
By following the steps outlined in this guide, you can ensure that your internal investigations are handled professionally and protect the rights of your employees. When an investigation is conducted properly, it not only helps to resolve immediate issues, it also helps to build a respectful and compliant workplace environment.
HR Consulting services by Trusted HR
If you need further advice or guidance when conducting a workplace investigation, or you’d like advice on other aspects of your business, our HR consultants are here to help. Trusted HR offers email, telephone, video call, or on-site support to help ensure you follow the correct dismissal procedures and protect your business.
Our team members are fully qualified, up to CIPD Level 7 and highly experienced. They can help you reduce the risk of dismissing an employee, especially if it’s a complex issue. In addition to our ad hoc HR consultancy, we also offer three levels of retainer HR support if you require ongoing guidance and advice.
Trusted HR offers a free, 45-minute, no-obligation consultation on any HR issue, including dismissals. Request your consultation to get started.
