Workplace investigations involving employees can be needed when a disciplinary issue needs investigating, when someone raises a grievance or a whistleblowing concern or when an employee raises concerns which may not fit easily into any formal process but require investigation in any event.
There are a number of risks if you don't investigate issues adequately. The first is the risk of a legal challenge, most commonly, for unfair dismissal on the grounds that a fair procedure hasn't been followed, which can lead to an increase in compensation awards of up to 25%. Problems with the quality of an investigation can also lead to flawed decisions being made, with decision makers taking into account the conclusions and recommendations of the investigation.
Appointing the correct investigator is crucial but is something which can often go wrong. The most common mistake is for the investigation to be taken on by someone too senior for the role, either because the original complaint or concern has been addressed to them, or because thought has not been given to who will be needed at the additional stages of a formal process further down the line. It is very important that there is a separation of roles between investigation, hearing and appeal stage, and ideally, those involved should increase in superiority through the stages of the process.
Additionally, it is very important that the investigator has not been involved in the issue, and is sufficiently impartial. Consider whether the potential investigator has the necessary skills to carry out the investigation; how will they manage when interviewing a difficult or angry witness? Would they be a good witness in an employment tribunal, should a legal challenge be brought? Do they have the time to investigate the matter adequately? Finally, should consideration be given to using an external investigator if the matter is highly sensitive or there is no one impartial within the school?
Case law tells us that there should be an investigation that is 'reasonable in all the circumstances.' In practice, this means that consideration should be given to the severity of the issues under investigation, the more serious, the more thorough the investigation required. The investigation should be sufficient to ensure that the substance of the allegations is clear and can be put to the employee to allow a meaningful response.
Difficult Areas
Witnesses
The bulk of an investigation is often focused on witnesses. It is for the investigator to decide which witnesses are relevant to the investigation and difficult decisions may be required about who is relevant to the investigation in order to ensure that the investigation is thorough and fair. Character witnesses are unlikely to be necessary.
There can be particular difficulties when witnesses are reluctant to take part or if they ask if they can be anonymous. When witnesses are reluctant to take part, it can be helpful to understand exactly what their concerns are and to try to reassure them.
Requests for anonymity should be handled very carefully. Consider why the request is being made and be cautious about agreeing to anonymity. Little weight will be put on an anonymous statement and it may not be possible to ensure anonymity throughout the process should a legal challenge be made and/or a Subject Access Request made.
There is no statutory right to be accompanied to an investigation meeting, but policies and procedures may set out a right and so should be checked. If a request is made, consider it on its merits as it may help the investigation to progress if you agree in certain cases. It is often a union representative, but if it's a family member or partner, consider whether you are happy for them to speak at the meeting or simply be present to support the member of staff.
Investigations can have a habit of expanding. Try to keep the process focused by ensuring that there are clear Terms of Reference in place at the outset, setting out clearly what is under investigation and the parameters.
If additional matters do crop up as the investigation progresses, consider carefully how to deal with them. It may be necessary to amend the Terms of Reference to take these into account. Consider if the issues are historic and have been already dealt with or whether a separate investigation may be appropriate.