Home About us Our services Our team Careers Blog News & events Get in touch Covid-19 Get in touch 01202 499255 Blog Home Blog Employment The Dos and Don'ts of Workplace Investigations Posted2 Dec 2021 AuthorChris Dobbs Employment Solicitor Chris Dobbs looks at the Yorkshire Cricket Club allegations, discussing the dos and don’ts of workplace investigations. Yorkshire Cricket Club Allegations As the world of sport is once again embroiled in historic allegations, the spotlight has particularly turned to Yorkshire Cricket Club. The club have been criticised for the investigation process into historical allegations of racism. As the investigation forms part of an ongoing legal case, we cannot comment in too much detail on the specifics, but the issue of effective investigations is important for all employers. Workplace investigations and employment tribunal The majority of workplace investigations are not subject to media, public or Parliamentary scrutiny, however they may be questioned by an employment tribunal. Regardless of whether it is a claim for unfair dismissal or discrimination, it is very common to see a defect in an investigation process or procedure highlighted in a Claimant’s case. It might be that the investigation was not thorough enough, the investigator was biased in some way or that the conduct of the investigation itself was detrimental to the employee. What is a workplace investigation? An investigation of some kind should form part of the decision-making process in both grievances and disciplinary procedures. In the case of a grievance, the employer is investigating the content of the grievance itself in order to remedy a complaint by a member of staff. In a disciplinary procedure, the investigation should be exploring any alleged misconduct by the employee to assist in an informed decision-making process about any disciplinary action. How to conduct a good workplace investigation Investigations should be treated as a fact-finding exercise. They are not a witch hunt or an opportunity to ‘prove’ any particular allegations. A good investigation will present any evidence obtained impartially but in a manner which allowed for an informed decision by the employer. Whoever carries out the investigation is not there to prove the case, but to look for evidence which both support and oppose the issue at hand. Are workplace investigations required by law? There is no statutory obligation to undertake an investigation into either a grievance or a disciplinary allegation. However: In an unfair dismissal case, the Tribunal will expect an employer to have acted reasonably in all steps it took up to dismissal. Not having an investigation may count against an employer in this test. Similarly, not having conducted a thorough investigation into alleged discrimination may put an employer in difficulty. It may be presented as a further discriminatory act or the employer may limit their own potential defences to the claim. Workplace Investigations: What does ACAS say? The ACAS Code of Practice on Disciplinary and Grievance Procedures says that: “Employers should carry out any necessary investigations, to establish the facts of the case.” While ACAS guidance is not strictly legally binding, failing to comply with it will: firstly, generally evidence a failure to act in a ‘reasonable’ manner and, secondly, entitle the Claimant to seek up to a 25% uplift in their compensatory award if they win an unfair dismissal claim. When is a workplace investigation ‘necessary’? When an incident arises, an employer should first decide whether they will actually be taking formal action. Whether a grievance or a potential discipline issue, many workplace matters can be resolved without relying on formal procedures and can often be managed through informal steps, mediation or effective general management. An investigation will only usually follow where it is decided that formal action is required. It may be that an investigation is: Required by internal policy or procedure, in which case not doing so may give an employee a breach of contract claim; Appropriate because the incident warrants further investigation to help a potential decision-maker; Helpful in determining whether there is in fact a case to answer such as where alleged misconduct is only suspected or had maybe been reported by a third party What makes a good workplace investigation? Knowledge of what is being investigated Firstly, it is important to know what is being investigated. To assist the investigator, it is helpful if the ultimate decision-maker explains what they are investigating and what should be produced. Should the investigation be a full report? Is the investigator expected to make a recommendation as to what next stages should be taken? Who should they speak to in the event of unforeseen complication if they require further assistance? Who should conduct workplace investigations? The investigator should be someone senior enough to command respect for the process. They should ideally be outside the situation and with limited connection to any people involved. However, it may also be necessary for them to have knowledge of a particular aspect of the business and therefore these differing demands should be balanced into the most appropriate person. If a suitably appropriate person cannot be identified, the employer should consider whether someone external might be more appropriate. Who should the investigator not be? The investigator and the decision-maker should not be the same person in disciplinary cases. In any case, it should not be someone too closely linked to the people or situation that is being investigated. How do you handle a workplace investigation? Investigations are a confidential process and a breach of that confidentiality may be an act of misconduct. This means that both the investigator and anyone concerned should be aware of the need for sensitivity. Employees should be allowed to discuss with a representative if they have one including internal union representatives where appropriate. Remember that employees do not have the right to be accompanied at fact-finding investigation meetings but that it may be appropriate in some situations to allow a companion. The importance of witness interviews in workplace investigations In the majority of cases, the primary evidence for either a grievance or disciplinary investigation will be from witnesses to alleged events. Investigators should bear in mind their job is to identify and establish facts of the matter so should consider any relevant evidence to both sides of the alleged event. What is a witness statement? Witnesses statements will commonly be a signed copy of the notes of an investigation meeting rather than what might be considered a written statement in, for example, legal proceedings. All interviewees should have the chance to review the record of their conversations and make clarifications before signing it to confirm it is accurate. If changes contradict what the investigator remembers was said (and this can be common with the subject of a disciplinary investigation), two records may have to be produced. Interviews and decision-makers alike should keep workplace politics in mind and give due consideration to the possible motives of any witnesses. What evidence should be used in a workplace investigation? It may be appropriate co consider other forms of physical or documentary evidence as part of an investigation. Anything used should be obtained lawfully and in a manner which is not in breach of the employee’s contract of employment. The investigator should keep a record of what evidence is obtained, how and on what basis it was obtained and what it evidences. More private instructions, such as the use of CCTV evidence or information obtained from a search of an employee’s possessions (including their desk, for example) should be referred to in policies. Any such search should be documented and allowed for under workplace policies. What should be included in a workplace investigation report? The outcome of an investigation should be some form of report back to the ultimate decision-maker which summarises the evidence and reaches a recommendation as to whether there is evidence to proceed with disciplinary action or not. Realistically, the recommendation may be: to proceed with formal steps, proceed with informal steps, or that no further action is recommended. The investigation report should not conclude as to guilt or otherwise as this may indicate predetermination on the part of the business as a whole. It can be useful to summarise agreed facts, contested facts and claims which are not evidenced or may be unsubstantiated as this will help the decision-maker with planning. Employment law advice and guidance: Stay up to date Throughout the pandemic, our team of bright lawyers have been publishing guidance on the ever-changing regulations. The timely updates are published on our website in plain English and shared on our social media channels. To be the first to hear about any updates, you can register for our free newsletter (and choose the topics you want to hear about) here. 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