Workplace investigations – five things an employer needs to know

What steps can be taken by employers to ensure that employee investigations are carried out in an effective manner and in a way that can contribute to the employer’s defence if a claim is brought against them?  

If allegations of misconduct have been made or a grievance is raised, the employer should carry out an investigation but it should be limited to discovering the facts of the situation and not making any formal decision.   

There are five main stages through which employee investigations should pass. These five stages are applicable to any investigation process, whether it is undertaken in relation to a grievance or disciplinary issue:   

1) Assess if an investigation is needed

Consider whether carrying out an investigation is actually needed. If the grievance or disciplinary issue is relatively low-level, the employer should consider whether matters can be resolved informally.  

However, it is worth remembering that if, for example, the employee misconduct is glaringly obvious, the presumption should not be made that there is no point in holding an investigation i.e. that the matter is an open and shut case.  There may well be a good explanation for the misconduct and the employee should be allowed to put their case.   

A thorough investigation, even when it seems that there is no need for it, will serve as evidence in later proceedings that the employer followed the requirements of HR law regarding the disciplinary process.

2) Plan the investigation

Tempting though it may be to hold an immediate investigation, to strike while the iron is hot, the employer ought to plan the process so that it does not go off the rails or end up causing more problems than it solves. Planning things out in advance can avoid the accusation that the investigation has been badly handled or is disproportionate to the gravity of the offence being considered.  

Things to be considered when planning how the investigation is to take place include:  

• The nature of the allegation or concerns raised. 

• Should legal privilege be considered – and should legal representation be sought? 

• What actions should be taken while the investigation is ongoing – e.g. suspension, reassignment, etc.  

3) Establish the facts

Once the employer has planned how they are going to conduct the investigation, they can begin to establish the facts surrounding the case. Interviews can be held and evidence gathered to find out the truth behind the allegation or grievance that has been made. 

At this stage, the investigation is not a substantive hearing and there is no pre-determined outcome for it. It may well be that the investigator realises as they gather their evidence that it starts to point to  one particular outcome. If this is the case, there should be no attempt to bury evidence in order to achieve a particular result; if the evidence clearly indicates that there is no substance to the grievance or allegations, this should lead to the conclusion of the disciplinary process.  

Since no disciplinary action is being taken during the investigation, there will be no legal requirement to issue a formal invitation to the employee to attend. However, it may be a good idea to allow them to present any additional information they feel is germane to the case.  

If the employee is invited to attend an investigation meeting, they do not have the right of accompaniment by a work colleague or Trade Union representative.  However, to support the employee during the process, representation may be permitted.  

Rather than an unstructured and informal interview process, the investigator should ensure that they have a template prepared beforehand that ensures all interviews are conducted to the same standard. This can avoid accusations that the employer is trying to rig the outcome of the disciplinary process by steering interviewees and bending the evidence they present.  

4) Decide next steps

When the employer has finished the fact-finding exercise, they can consider their findings and decide on how to proceed. This will usually involve arranging a meeting with the employee to discuss the findings. 

It is also worth considering that if legal privilege has not been invoked, any documentation that has been created during the investigation might be subject to disclosure if legal proceedings are instituted at a future date.  

5) Is it a disciplinary matter?

If, in the case of disciplinary matters, the results of the investigation leads the employer to conclude that they need to take formal action that could lead to disciplinary sanctions, such as a written warning or termination of employment, they should hold a separate disciplinary meeting. During this meeting, it is important that they follow the disciplinary procedures that are laid down in the company’s handbook.  

If the investigation concludes with a decision that disciplinary action will be taken against the employee, they should be provided with copies of the statements and evidence that the investigation has gathered, attached to the invitation to attend the disciplinary meeting.