Employment Law: The A to Z of conducting investigations
No5 Barristers' Chambers
Have you been asked to conduct a disciplinary or grievance investigation in the work place?
Check out my A to Z guide for investigating officers. If you need any further guidance, contact employment@no5.com
ACAS
The first port of call for any investigating officer (“IO”) is the ACAS Code of Practice for both disciplinary and grievance procedures. The Code sets out the minimum that is expected of an employer conducting such processes, and so is a good starting point and must be heeded.
Be prepared
Like all good boy scouts, the IO needs to have done their homework. It is important for the IO to read all documentation available, including the employer’s disciplinary/grievance policy and any other policy relevant to the issue (e.g. bullying/harassment, social media etc).
Also, it is always wise to prepare a list of questions for each witness to be interviewed, so that the IO is confident they have covered all areas necessary.
Characters
An IO needs to consider who needs to be interviewed in order to gain the full picture of any specific scenario. This will need to be kept under review; as and when individuals are interviewed, it may be necessary to reconsider whether the IO needs to speak to anyone else as the matter progresses.
Documents
The IO should ensure that all parties present at the investigation meeting have copies of all the relevant paperwork/documentary evidence.
Evidence
The IO will need to give careful thought to whether they require any further evidence not currently available. For example, “is there any information from company databases that is needed?”, “what about previous performance appraisal notes?” or “have there been any prior complaints that need to be considered?”.
Fact-finding
This is the purpose of any investigation. It is not for the IO to decide the guilt of any party, but to consider whether there is a case to answer. An IO should probe for evidence that both supports and contradicts the allegations, as opposed to just trying to build a case against “the accused”.
Global view
A process will not be fair if an IO reaches a conclusion by “ignoring matters which he ought reasonably to have known and which would have shown that the reason [for dismissal] was insufficient”, as Viscount Dilhorne said in W Devis & Sons Ltd v Atkins [1977] IRLR 314. The IO should, for example, explore all defences or lines of enquiry proffered by an employee under investigation.
This is however caveated by the requirement that an employer need only do an investigation that is reasonable in all the circumstances: it has been accepted by the Court of Appeal that the British Home Stores Ltd v Burchell [1978] ICR 303 test does indeed apply to investigating defences in the round, but not necessarily each individual defence – see Shrestha v Genesis Housing Association Ltd [2015] EWCA Civ 94
In cases where the misconduct of which an employee is accused tips into the category of potentially criminal, dishonest or fraudulent behaviour, then the potential ramifications for that individual should impact the IO’s approach to their task. As the EAT has said, “a careful and conscientious investigation of the facts is necessary and the investigator charged with carrying out the inquiries should focus no less on any potential evidence that may exculpate or at least point towards the innocence of the employee as he should on the evidence directed towards proving the charges against him” – A v B [2003] IRLR 405.
Independence
An IO needs to be independent. Although it is perfectly acceptable for the IO to be a manager within the employer, if there is any hint of an allegation that the process is/may be tainted, then consideration could be given to bringing in an external person to act as IO.
Jurisdiction
IOs must be sure to define the scope of your investigation. For example, sometimes a grievance will arise at the same time, or during, a disciplinary process.
It will be necessary to check the employer’s policy as to their guidelines in such a scenario.
For example, the IO may need to consider suspending a disciplinary process whilst the grievance takes place.
Keep everything
Even if handwritten notes are superseded by typed notes, it is important to keep the handwritten notes for a reasonable period of time just in case there is an issue with the typed version, particularly if they are not agreed by the employee.
This also applies to any “notes to self” or aide memoires produced by an IO.
Length of process
Any unreasonable delay may lead to a finding of unfairness, without the employee needing to demonstrate actual prejudice (although this will help his case) – RSPCA v Cruden [1986] IRLR 83 and A v B [2003] IRLR 405.
Again, it is important to check the timelines established in any applicable policies.
Minutes
It is vital to have an accurate note of all meetings undertaken during an investigation process. Once witnesses have been interviewed and minutes have been prepared, these should be agreed and signed by all persons present. This safe-guards against an employee challenging the accuracy of the minutes later down the line. No5 Chambers If in doubt, our barristers are able to offer advice, or undertake the role of IO for both disciplinary and grievance processes.
Offences
During the course of an investigation, it can be that the offences with which an employee is charged change. This needs to be very clearly reflected in any investigation report. If there is a change to the allegations, then the amended allegations need also to be investigated to a reasonable standard.
Probability
The IO will need to consider what is more likely to have happened. In other words, the relevant burden of proof is the balance of probabilities.
Report
Having done all the leg-work, the IO will then need to prepare an investigation report. It is generally wise to attach as appendices all notes and documentary evidence collated during the investigation process. The report will contain a summary of charges and the IO’s findings.
Suspension
Where an employee has been suspended, the IO may need to be aware of the limitation that this places on the employee in terms of their ability to obtain information from the workplace.
For example, a generic suspension letter will prohibit an employee from talking to colleagues or stepping foot inside the workplace; the IO may therefore need to step in to obtain information/evidence that an employee cannot reach for themselves.
Training
If possible, ensure that your investigating officer has had some training specifically aimed at investigations, particularly where the allegation involves unlawful discrimination. Again, No5 can help here.
Union representatives
There is no statutory right for employees to be accompanied to an investigation meeting by anyone, however it may be good practice to offer an employee the choice of bringing a colleague or union rep with them to a meeting. Many disciplinary procedures provide for this.
Victim
In some investigations, there will be an alleged victim. Although it is necessary to ensure that the process is not onerous on any such person, it is necessary that any defence/evidence from the alleged perpetrator is put to the alleged victim fully and comprehensively, in order that such lines of enquiry do not go unexplored.
Witness box
When conducting an investigation, it can be useful to consider how actions and decisions taken by the IO would be justified at an unfair dismissal hearing, giving evidence in the witness box. By thinking of the (possible) end-game, it can help focus the mind on the task ahead.
X-reference
It is wise to cross-reference documentary evidence with that given by witnesses to ensure that conflicts are raised with witnesses and can be answered. The same applies to conflicting evidence between two witnesses. As above, it is only necessary for the investigation to be reasonable, but if there is a glaring inconsistency in evidence a witness should be given the opportunity to state their case.
Yes-men
IOs should be wary of falling foul of an accusation of paying lip-service to the process or being management’s puppet. As the old adage goes, “justice must be seen to be done”. Again, if this is a potential allegation that may be levelled at any internal staff, it may be sensible to appoint external support for the investigatory process.
Zeal
IOs sometimes run the risk of stepping into the role of prosecutor, as opposed to an investigator of fact. IOs need to be careful to avoid being overzealous; any heavy-handed treatment could be seen as a breach of the implied term of trust and confidence.