Workplace Investigations

Workplace investigations must be conducted correctly to avoid legal and reputational repercussions. Our independent HR investigators can help.

"Appointing independent HR investigators will give you confidence in complex or sensitive investigations, safeguard company reputation and improve employee trust & satisfaction."

Anne Morris | Managing Director

The purpose of an HR investigation is to enable the employer to understand the full facts of a matter or incident and allow fair, objective and informed decision-making to bring the matter to a conclusion.

But workplace investigations present considerable risks for employers.

HR investigations have to be handled fairly and employers should follow ACAS guidance on disciplinary and grievance matters.

Maintaining a sensitive, unbiased and non- confrontational approach during the investigation process will encourage your employees to address their concerns freely and without fear of retaliation.

Mishandling an employment investigation can influence the outcome and impact of a workplace dispute, and the process followed may be subject to future scrutiny should the matter result in a tribunal claim.

Failure to follow a proper and consistent investigation process can lead to tribunal claims and allegations of unlawful discrimination, detriment on the grounds of whistleblowing, data protection breaches and defamation.

Handling workplace investigations correctly is not only a legal obligation; consistent and fair treatment of employment investigations is important in promoting positive workforce relations.

Independent HR investigation services

Conducting an employment investigation internally is not always a practical or appropriate solution. In-house HR teams may lack the bandwidth, expertise or experience of conducting internal investigations, particularly where the dispute is complex or sensitive in nature. The investigator should not be involved in the matter that is subject of the investigation, or in the final decision-making process, to ensure fairness and credibility. And since every investigation is different, multiple issues can arise, requiring specialist insight to ensure the organisation complies with its obligations throughout the process. In these circumstances, it makes sense for employers to work with external, independent HR investigation specialists.

We can help

At DavidsonMorris, we have substantial experience in supporting employers with all types of workplace investigations.

As experienced independent HR investigators, we help employers comply with their legal obligations while supporting positive workforce relations.

Acting in an ethnical, transparent manner and with the utmost care and confidentiality, our team of specialist employment lawyers and HR professionals provide a fully comprehensive independent investigation service covering all manner of workplace disputes and allegations including:

Grievance and disciplinary matters
Bullying and harassment
Whistleblowing
Compliance concerns
Serious incidents
Company policies & procedures concerns

We bring together an in-depth understanding of the ACAS guidance with technical employment law knowledge on issues such as legal privilege to deliver a transparent, robust and cost-effective investigation on your behalf:

Gathering evidence
Conducting witness interviews
Matters involving criminal proceedings
Producing investigation report
Upholding confidentiality
Objective, transparent & ACAS compliant

Whether you’re a large organisation and your HR team does not have the capacity to take on an investigation, or if you’re a smaller employer without the expertise to conduct a fair investigation, we can help.

We will carry out the investigation efficiently and with minimal disruption to the organisation and present the findings within a comprehensive report with conclusions, which can be relied on by the organisation to make a fully informed decision on the matter.

For more information about our workplace investigation services, contact us.

The role of workplace investigations in disciplinaries

When a potential misconduct issue arises in the workplace, the first step in managing the situation is to conduct an investigation to determine the facts of the case. This is essential for the employer to act fairly and reduce the risk of claims of unfair dismissal.

A disciplinary investigation is conducted to determine the facts and circumstances surrounding an employee’s alleged misconduct.

Its primary objective is to collect all evidence and documentation that may be relevant to the allegations, and for the investigator to make a recommendation as to whether the employee has a case to answer and whether the matter warrants a formal disciplinary hearing in accordance with the employer’s formal disciplinary procedure.

Failure to comply with the Acas Code, which was issued under the Trade Union and Labour Relations (Consolidation) Act 1992 (TULR(C)A 1992), does not automatically render an employer liable in any proceedings brought against it. However, an employment tribunal will consider the Acas Code when determining whether an employer has behaved fairly, and has the authority to increase awards by up to 25% if it believes an employer has failed to comply with the Acas Code’s provisions.

In cases where there are claims for both wrongful and unfair dismissal, even if the employment tribunal rejects the unfair dismissal claim, procedural breaches of the Acas Code relating to the employer’s investigation and disciplinary process can still be considered when determining an increase to any wrongful dismissal award.

When to conduct an investigation in the workplace

All necessary investigations of prospective disciplinary matters should be conducted expeditiously and without undue delay in order to determine the case’s facts.

A disciplinary investigation must always occur prior to any disciplinary hearing, and begin as soon as management becomes aware of an employee’s alleged misconduct.

Who should conduct the investigation?

The role of an investigator is to be fair and objective so that they can establish the essential facts of the case and determine what did or did not occur, but not to prove any party’s culpability. The individual(s) charged with conducting a disciplinary investigation must be sufficiently senior to the employee whose conduct is being investigated; it would not be appropriate for a novice employee to investigate a senior employee. According to the Acas guidance on discipline and grievances at work, an investigatory meeting should be conducted by a management representative who is properly trained, both in conducting investigations and in the employer’s disciplinary procedures, so there is a good understanding of how the investigation fits into the overall process and is as objective and impartial as is practically possible. The person conducting the investigation should not have been a witness to the events that gave rise to the allegations being investigated and should not be the person who will likely be appointed to conduct any disciplinary proceeding that is convened. If an employer is very small or has limited resources, it may not be feasible for a separate person to conduct the investigation and disciplinary hearing. If this is the case, instructing an independent consultant to conduct the investigation on behalf of the employer is one option. The employer should also give careful consideration to the professional relationships of any investigation subjects, as well as identify and manage any potential conflicts of interest.

Why appoint an external investigator?

There are many advantages to appointing an independent external investigator.

Appointing an external investigator ensures that complex employee relation matters are handled in a professional and timely manner, giving managers and employees confidence in an objective and well-planned process. It can also help improve employee trust and satisfaction, give confidence with complex or sensitive investigations and help safeguard company reputation.

Common scenarios where external investigators are appointed include:

When it is not feasible for the employer organisation to have a distinct person conduct the investigation and disciplinary hearing.
If the suspected misconduct involves many employees, reviewing many documents, or taking multiple statements.
If the issues involved are complex.
If allegations involve sexual or other serious misconduct against senior executives, where internal investigations may not command the same credibility.
If an investigation is likely to uncover issues regarding the organisation’s culture, practices, or procedures.
If allegations are likely to attract media attention.

When appointing an external investigator, it is essential that the investigation’s scope is set out in the terms of reference.

Define the scope & terms of reference for the investigation

Establishing a clearly defined scope of work from the inception will help to ensure focus of the procedure and manage costs and time. Consider:

defining the purpose and scope of the work in plain and neutral terms;
determining whether any applicable internal policies must be applied;
determining the appropriate standard of proof and whether there is any reason to depart from the civil standard.
if the investigator’s role should be limited to factual findings or if they should be asked to make recommendations as to sanction and/or any other matter; how the team will update senior management (and if that is appropriate);
if the investigation will be privileged, this must be clearly stated in the terms of reference;
if the investigation will be confidential, this must be clearly stated in the terms of reference.
information sharing protocols, to ensure that all parties are aware of who must review and approve which documents, communications, and decisions

Legal privilege

The current law regarding privilege and its application to investigations is complex. Typically, the most challenging privilege issue that arises during investigations involves witness interviews.

When a director or shareholder is the subject of an investigation, specific issues may also arise, as the law regarding their rights to privileged information deriving from their status differs from that of other workers, employees, or third parties. Consequently, care should be taken to minimise such entitlements in the context of an investigation.

Employers have to ensure careful coordination with HR and legal advisers regarding employment law risks and procedures, the impact of investigation work on potential tribunal claims, and the management of employee exits.

Workplace investigation process

The disciplinary investigation procedure consists of the following steps:

Obtaining witness statements
Conducting investigative interviews
Collecting documentary evidence
Evaluating the evidence
Making recommendations

Obtaining witness testimony

If there are witnesses to an incident of misconduct, their account of what events should be documented in a witness statement as soon as possible. In an investigation, it is crucial that all relevant witnesses provide statements, not just those who support the allegations against the employee.

The witness statement should be fact-based, not speculative or subjective, and should include the following:

the witness’s name
their position in the company
the date and time of the incident
in their own words, what happened and what they saw and/or heard

A witness must sign and date their own witness statement.

Sometimes a witness may be unwilling to provide a statement. This is frequently the result of fear of retaliation or reluctance to become embroiled in a disciplinary matter. The investigator must always address any concerns and endeavour to allay any anxieties. No employee should be required to provide a witness statement by the employer.

Additionally, witnesses may be concerned about confidentiality. They should be informed that their statement may be used as evidence in the matter under investigation and, as such, may be viewed by the employee under investigation and any other parties involved in the subsequent disciplinary proceedings.

If a witness’s employment contract contains a confidentiality clause, it is best practice to remind them of their obligation to maintain the statement’s confidentiality.

Witnesses should also be made aware that any attempt to intentionally provide false or misleading information in a statement may constitute a disciplinary matter.

As part of the investigation, all witness statements should be thoroughly examined for inconsistencies, inaccuracies, and indications of collusion. Two witness statements that appear to correlate too closely may be indicative of witness collusion.

Conducting investigative interviews It may be necessary to conduct one or more investigative interviews with the employee accused of misconduct and/or witnesses to the incident. Such consultations may be necessary:

to establish and elucidate the facts when they are unclear from the witness statement;
when a particular witness lacks the confidence to write their own witness statement;
when there are indications of witness collusion

When conducting an interview with an employee or a witness, the investigator should do so in a private office where there will be no interruptions. Throughout the interview, the investigator must:

explain that an investigative interview is necessary;
outline the date and time of the incident;
ask open-ended questions about the incident and what the witness saw and heard;
determine who else was present and may be a witness to the incident;
at the end of the interview, summarise what has been discussed to confirm understanding and key points;
explain that the contents of the interview are confidential
record minute-by-minute details
ask the employee or witness to sign and date the minutes

There is no statutory right for an employee to be accompanied to an investigative interview; however, consideration should be given to allowing an employee to be accompanied by a work colleague or trade union representative if this would be a reasonable adjustment.

It is not always necessary to conduct an interview with the employee under investigation because they will have the opportunity to present their case at any subsequent disciplinary hearing. However, such interviews can be beneficial, especially if there is reason to mistrust an employee’s honesty or integrity. Statements made during an early investigative interview may serve as a useful comparison to explanations provided after the investigation is concluded and all evidence has been disclosed. If an employer does not conduct an investigational meeting with the employee, that fact alone is insufficient to determine whether a subsequent termination was unfair. The question is whether or not the employer conducted a reasonable investigation given the circumstances.

Collecting evidence

Additional relevant documentary evidence should be collected. Examples include:

a copy of the employee’s contract
the staff handbook
a copy of the employer’s disciplinary procedure
any other policies and procedures that outline the rules or standard of conduct expected by the employer and allegedly breached by the employee
where applicable, any other relevant statutory or regulatory rules or codes of practise that have allegedly been breached by the employee
relevant employee training records, qualifications or certificates
any other relevant information

All pertinent documentation, such as witness statements and records of investigative interviews, should be compiled into a single file in a logical and (where applicable) chronological order to form a compilation of evidence.

Evaluating the evidence

The investigator should then examine the evidence package to confirm:

the investigation is thorough and complete
there are no omissions or errors in the investigation
all documents are relevant to the matter under investigation
whether the employer’s rules, policies, procedures, and standards pertaining to the allegation under investigation are documented and clear
the investigation was conducted without bias or unfairness

The investigator must recommend scheduling a disciplinary hearing if the evidence demonstrates:

the employer has a clearly defined rule, policy, procedure, or standard;
that rule, policy, procedure, or standard may have been breached by the employee; and
such a breach may, if shown to have occurred, be regarded by the employer as serious enough to warrant some form of disciplinary sanction (it would not normally be reasonable to proceed to a disciplinary hearing if, even at its highest, the alleged misconduct is clearly too minor to warrant any form of disciplinary action.

If the evidence does not adequately support the aforementioned, the investigator must evaluate whether to conduct additional investigations, or to recommend no further action.

The investigator should make only suggestions. Their report should not contain any evaluative conclusions.

It is also not the investigator’s responsibility to make recommendations regarding the appropriate level of disciplinary action. Any evidence of this could suggest that the outcome of a subsequent disciplinary hearing was predetermined. Any evidence that the disciplinary hearing had been prejudged could result in a finding of unjust dismissal against the employer if the matter is subsequently reviewed by an Employment Tribunal.

If an investigator fails to communicate a material fact to the person who makes the decision to terminate an employee, this may affect the equity of the termination.

Should you suspend an employee during an investigation?

In certain circumstances, it may be necessary to suspend an employee as soon as an investigation reveals a serious matter that will or is likely to result in disciplinary action, even if the full investigation into the matter has not yet been completed.

According to the Acas guidance on suspension during an investigation at work, an employer should only consider suspension if it believes it is necessary to protect:

the investigation, for instance, if there are concerns about the employee tampering with evidence or influencing witnesses;
the business, for instance, if there is a genuine risk to customers, property, or business interests;
other employees; or
the person under investigation.

Before suspending an employee, the employer should conduct preliminary investigations to determine whether the allegations are supported by evidence and whether the suspension is warranted. An abrupt or ill-conceived suspension may result in a breach of contract claim.

In contrast, an unnecessary delay in suspending or failure to suspend an employee when there are pending allegations of gross misconduct against the employee may prejudice the employer’s case if the employee is subsequently dismissed without notice and submits a claim for unfair dismissal to an employment tribunal. If the employee was permitted to continue performing their duties right up until the date of their dismissal, it may be difficult to demonstrate that dismissal without notice was an appropriate disciplinary measure.

Workplace investigations & legal privilege

The current law regarding privilege and its application to investigations is complex. Typically, the most challenging privilege issue that arises during investigations involves witness interviews. When a director or shareholder is the subject of an investigation, specific issues may also arise, as the law regarding their rights to privileged information deriving from their status differs from that of other workers, employees, or third parties. Consequently, care should be taken to minimise such entitlements in the context of an investigation. We can advise on the appropriate action to maximise use of available privilege.

Workplace investigations & data protection

Preserving and collecting relevant data is a key consideration during an investigation. At the outset, the allocation of responsibility for document preservation, collection, and storage requires careful consideration, including advice regarding the legal restrictions on gathering and sharing data imposed by data protection legislation. A plan for preserving electronic data and documents from the outset, in order to reduce the risk of attempted or inadvertent deletion, will be essential for facilitating the collection and review of data throughout the duration of the project. On the opposite end of the spectrum, it is essential to avoid producing content that may be disclosed and may reflect negatively on staff or the company. All documentation and witness statements gathered during the investigation should be retained securely and confidentially, but for no longer than strictly necessary, in accordance with the requirements of the GDPR and the Data Protection Act 2018, as well as the employer’s data protection policies and procedures. Personal information should be managed in accordance with the data protection policy of the employer.

Workplace investigations & stakeholder engagement

It will be important to explain and position the subject matter and findings with relevant stakeholders as part of any investigation procedure. To maximise this opportunity, consider the need for “Maxwellisation” in certain types of investigations, which is a procedure that allows individuals named in the report to comment prior to publication. Depending on the circumstances, there may be a need for market announcements or shareholder communications, especially if an issue or the investigation itself has been made public. You may also need to define what should be said (if anything) to the Board and other internal and external stakeholders in terms of key messages.

Need assistance?

Every workplace investigation is different, presenting unique challenges, sensitivities, complexities and dynamics to be managed fairly and lawfully to avoid the risk of legal complaints, damage to employee relations and reputational harm. As independent, external investigators, we bring expertise and insight rooted in extensive investigation experience and best practice. To discuss how we could support your organisation with an internal investigation, contact us.

Workplace investigation FAQs

What is a workplace investigation?

A workplace investigation is used to establish the facts relating to significant wrongdoing, misconduct or ethical lapses at work, usually as part of the organisation's grievance and disciplinary procedure. The investigation findings are used for the employer to make an informed decision on the matter.

What are employees' rights during an investigation?

Employers must ensure that the investigation process is fair and confidential, that any relevant internal policies are followed, that as much evidence and information is gathered as possible to support informed decision-making, and that the process is not designed to prove guilt but to establish full facts.

How do you conduct an investigation at work?

First, establish if an investigation is necessary, then scope out what is to be investigated before fact-finding and gathering evidence. The findings should form the basis of a report which the decision-maker uses to determine the outcome of the investigation, which may be disciplinary action or other relevant follow up activity.

Contact DavidsonMorris

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