Investigating a disciplinary or grievance incident is a critical and often sensitive task for a manager. The findings of a fair and comprehensive investigation will be the cornerstone in deciding if any further action needs to be taken against an employee, so shouldn't be underestimated.
An inadequate, or worse still, no investigation can expose a business to a variety of risks including employment tribunals and civil actions. In extreme cases the poor handling of an investigation can also result in a workforce developing a lack of confidence in the management of the business as a whole.
While the ACAS Code of Practice on Disciplinary and Grievance Procedures provides a framework for handling workplace issues and establishing the facts by way of an investigation. We wanted to give an overview of the important practical steps to consider should you ever need to conduct a workplace investigation or be in the role of an investigating officer.
What incidents may require an investigation?
Investigation Policies and Procedures.
The parameters and process of an internal investigation should ideally be detailed in your business policies or employee handbook, as it's important that all parties involved in the investigation are aware of the procedure and what to expect.
For example, in relation to an employee complaint, your company Grievance Policy may advise:
For most employees it will be daunting to be involved in, or the subject of, an investigation, so having the process mapped out in your company policies will help clarify the process and let them know what to expect.
Ensure an Impartial Workplace Investigation.
Wherever possible the person tasked with conducting the investigation should not have been involved with the issue being investigated. The investigating officer's role is that of a fact-finder, and when selecting an investigator, it should be someone who can collect the relevant evidence without the burden of having previous knowledge of the issue.
An employee, manager or supervisor without prior knowledge of the issue can be difficult to select in smaller businesses. So, in these cases the priority should be selecting an individual that was not directly involved in the issue and who will not be involved in any decision making on future stage (formal hearings, appeals etc.).
Once selected and briefed, the investigator should then be left to consider what information needs to be obtained to gain a full understanding of the issue and what has occurred.
Conducting an Investigation Interview.
Once the investigating officer has an idea of who they wish to interview they should invite them to a meeting as soon as possible. If practical, it will be helpful to also have an independent notetaker in the interview whose only role is to record what is discussed at the meeting. Often this will be a representative from HR, but any individual who is able to take confidential notes will allow the investigator to concentrate on their questions and the interviewee's responses.
The notes of the interview should be recorded in a standard format and having a workplace investigation interview template prepared which can also be signed by the interviewee will certainly assist this. For the investigation interview itself it's recommended that you:
Whilst evidence can be obtained from various sources, witness interviews are usually the most important source of information for the investigation. Therefore, preparation into the order of interviewees and questions that need to be asked will pay dividends.
Writing an Investigation Report.
Once the evidence gathering has concluded, the investigating officer should compile their findings into a written document that can be securely shared with all the parties involved. Again, it will be helpful to use an investigation report template which includes all the major sections.
The report should detail all the evidence complied, the facts that have been established, and any information that couldn’t be confirmed or remains uncertain. While the report itself doesn’t need to restate word-for-word every piece of evidence gathered, it should at least record what has been collected and ideally summarise or quote relevant portions.
Finally, the investigating officer needs to make a recommendation based on their findings. This recommendation should be solely based on conclusions drawn from the investigation they have conducted and be clear from the report how they have been reached. Depending on the company’s disciplinary policy the recommendation of the report may be:
Most importantly if the investigator does recommend formal action, they should not then proceed to suggest sanctions or in any way prejudge what a disciplinary or grievance hearing may find.
Once the investigation process has been completed, you may like to follow up the outcomes and gauge the effect that the recommended actions have had on those involved. If the recommendations have resulted in a positive improvement, other proactive actions may be able to be taken which will anticipate and spot behaviours before they become problems.
Catalyst Law are team of legal professionals with over 20 years' experience helping businesses and people with their legal problems.
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