UK Employment Update: Ten top tips: Managing workplace investigations

The news has been filled with high-profile workplace investigations, covering issues such as alleged discriminatory behaviours, harassment, toxic culture, and widespread bullying.

Failure to handle investigations well (whether in the context of grievance, disciplinary, whistleblowing or wider cultural issues) can create significant legal issues as well as generating cost and reputational risks for employers.

1. Purpose of Investigation

A crucial part of the investigation process is to consider at the outset what the purpose of the investigation is. In a workplace setting, investigations are commonly required in cases of misconduct ahead of a disciplinary hearing, but they can also be required in various other situations such grievances, whistleblowing investigations, or complaints from third parties etc. In each case, the purpose of the investigation may be different, and it is therefore important that the investigator knows exactly what they are being asked to do.

2. Who should investigate?

It will be important to think carefully about who should carry out an investigation and who you choose to be your investigator will usually be informed by the purpose of it.

In some organisations, appointing an appropriate investigator will be difficult where the allegations involved are against senior management or where there are a range of allegations involving various witnesses which means that any investigation may be onerous and time-consuming. In some cases, particularly where there is scrutiny by regulators and/or the media, organisations may take a decision to appoint an independent lawyer to conduct an investigation.

3.Confidentiality and Witness Issues

A common challenge that employers often encounter, particularly in situations relating to disciplinary issues or grievances, is when a complainant or witness to an investigation says that they no longer wish to participate in the process, or that they want to remain anonymous. It can be difficult to conduct an effective investigation in such circumstances as it can lead to unfairness for the person who is the subject of the investigation if they don’t have access to the full details of the case against them meaning that they cannot meaningfully respond to the allegations they face.

If a complainant or witness wishes to withdraw their involvement from the process or remain anonymous, you should first explore the reasons for this. When conducting investigation meetings, it is sensible to deal with confidentiality at the outset and it should be made clear to those involved that what they say may be shared with others. It is never a good idea to give a guarantee of anonymity as, even if personal details are redacted, it is possible that someone may be able to identify an individual from the surrounding context. It is also possible that unredacted copies of witness statements may be required to be produced in subsequent litigation. If anonymity is required in an investigation, we would recommend that you take advice on this before proceeding.

4. Historic Complaints

After the Me Too movement, it is becoming more common for employees to come forward with allegations relating to matters which are said to have happened a long time ago. It can be difficult to investigate these cases as people’s recollection of events inevitably fade over time, and the allegations may even relate to individuals who no longer work in the business.

There is no legislation outlining how to conduct an investigation, beyond a clear understanding that an employer has a duty to act reasonably. There is therefore no one size fits all approach but if faced with historic complaints then, in the first instance an employer will want to consider the severity of the allegations involved and make sure their response is proportionate.

5. Interplay with Criminal Proceedings

There is no general prohibition on an employer conducting its own internal investigation where the matter is also subject to criminal proceedings. However, employers should be wary of the fact that employees may not be willing to share all relevant details whilst criminal investigations are ongoing and ultimately you can’t force someone to participate in an internal process.

6. Interplay with Regulatory Obligations

Employers who are regulated will always need to bear in mind any obligations they have to their regulator. Each regulator will impose their own reporting requirement and so it will be important for employers to consult the relevant rules which apply before launching into an investigation.

7. Standard of Proof

The degree of exhaustiveness required of an investigation will depend on its purpose, and the standard of proof in workplace investigations is generally on the balance of probabilities. This means there is generally no requirement for an investigator to “leave no stone unturned” but an employer must investigate sufficiently to ensure any conclusions reached can be justified.

8. Investigation Outcome and Next Steps

Once all the evidence has been gathered, the investigator should then present their findings in a structured way setting out what steps they have taken to investigate the matter, what facts they have established and what recommendations they make (where appropriate).

9. Reputational Issues

It is important for employers not to see the investigation in isolation or to think that by simply discipling someone or closing off the internal process then that is the end of it. Investigations involving serious or sensitive allegations, such as sexual harassment or sustained discrimination can attract substantial media attention and cause significant damage to a business’ reputation. In these sorts of cases external communications should be an important part of an employer’s action plan.

10. Litigation and Disclosure Requirements

It is worth bearing in mind that, in the event that an employee raises a tribunal claim, then there will be a requirement on both parties to participate in a process commonly known as ‘disclosure’ which can require parties to disclose all relevant documents they have in respect of a case. Employers should therefore be aware that any information committed to writing could later be shared with employees, and should draft all emails, reports and other documents with this in mind.

We have an experienced investigations team who regularly support clients with a range of complex and highly sensitive matters, often involving a regulatory backdrop. We also provide training to both HR teams and managers on how to conduct effective internal investigations, with a view to minimising legal risk.

By Burness Paull LLP, Scotland, a Transatlantic Law International Affiliated Firm.  

For further information or for any assistance please contact ukscotland@transatlanticlaw.com

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