Workplace Investigations: HR & Employers’ Guide

Section A: What are Workplace Investigations?

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 (including section 207A), does not automatically render an employer liable in any proceedings brought against it. However, an employment tribunal will consider the Acas Code when assessing whether an employer has acted fairly and can increase or reduce certain awards by up to 25% where it considers that either party has unreasonably failed to comply with the Code.

In cases where there are claims for both wrongful and unfair dismissal, the tribunal can, in some circumstances, apply an uplift to certain awards where section 207A is engaged and it finds an unreasonable failure to follow the Acas Code. In appropriate cases, this can affect awards in related claims such as wrongful dismissal, but whether an uplift applies will depend on whether the Code is engaged for that particular claim.

1. 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 should usually take place before any disciplinary hearing and should begin as soon as management becomes aware of an employee’s alleged misconduct.

2. 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) tasked with conducting a disciplinary investigation should 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 proceedings that may follow.

If the employer is 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. Contact us to discuss how we could support your organisation as an independent investigator.

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.

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, the investigation’s scope should be agreed in advance and set out in the terms of reference.

3. Defining the scope & terms of reference for the investigation

You need the scope agreed before anyone starts speaking to witnesses or reviewing documents. A tight brief keeps the investigation focused, stops it drifting and helps you control time and cost.

Set out in plain, neutral language what the investigation is about (and what it is not about), which internal policies and procedures apply and how they will be used, and the standard of proof you are working to (usually the civil standard), with any reason to depart from that recorded.

Be clear whether the investigator is limited to factual findings or is also being asked to make recommendations on sanction or other outcomes, and whether and how they will update senior management during the process.

You then need to decide how information will be protected and shared. If you intend the investigation to be legally privileged, that should be stated in the terms of reference, as should any confidentiality expectations. Put in place simple information sharing rules so it is clear who is allowed to see and approve which documents, communications and decisions. That gives you a controlled and defensible flow of information if the case is later scrutinised.

Section B: Workplace Investigation Process

Because workplace investigations are high-risk exercises for employers, a well-managed investigation can help to reduce risk exposure. Investigations should follow distinct stages that mirror ACAS guidance and your own disciplinary and grievance procedures to reduce the chances of grievance escalation, unfair dismissal claims and wider damage to trust in management. A structured investigation process reduces inconsistency between cases, plugs procedural gaps and gives you a defensible trail if a decision is later scrutinised by advisers or a tribunal. It also signals to staff that serious issues are treated in a measured, evidence-based way, not on impulse or hearsay.

The disciplinary investigation procedure consists of the following steps.

1. Witness statements

If there are witnesses to an incident of misconduct, their account of what events occurred should be documented in a witness statement as soon as possible. In an investigation, all relevant witnesses should 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 should actively address any concerns and endeavour to allay any anxieties. Employers are entitled to expect reasonable cooperation from staff, but should avoid placing inappropriate pressure on individuals to provide a statement, particularly where there are concerns about retaliation, victimisation or wellbeing.

In practice, 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.

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 should:

• 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, it is good practice to consider allowing a companion, such as a work colleague or trade union representative, particularly where this would amount to a reasonable adjustment or help to reassure the employee.

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.

2. 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 practice 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.

3. 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 should 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 should then consider whether to carry out further enquiries or to recommend no further action.

The investigator should focus on factual findings and clear analysis of the evidence, rather than adopting the role of decision-maker.

In many organisations it will be safer for the investigator to avoid recommending specific sanctions and to leave that decision to a separate manager who has not been involved in the investigation. This helps to reduce any suggestion that the outcome of a later disciplinary hearing was predetermined and supports the employer’s position if the case is scrutinised 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.

4. Deciding the outcome

Once the investigator’s report is complete, the employer moves to the decision-making stage. The starting point is to appoint a decision-maker who has had no prior involvement in the matter and who is senior enough to impose any sanction that may be necessary. That individual should read the full evidence bundle, including witness statements, documents and the investigator’s analysis, rather than a summary alone, because the ACAS Code expects the decision-maker to reach their own view on credibility. The civil standard of proof, the “balance of probabilities”, applies. However, the more serious the allegation, the more cogent the evidence will need to be before it is judged “more likely than not” to have occurred.

During deliberations, the decision-maker should test the evidence against the relevant policies and, if disciplinary action is contemplated, against the organisation’s sanction matrix. They must also weigh any mitigation put forward by the employee, such as length of service, remorse, health or contributory failings by management. Contemporaneous notes of this assessment process are essential. A tribunal may later require the employer to show why particular pieces of evidence were accepted or rejected and how the final outcome was deemed proportionate.

Once a provisional conclusion is reached, the decision-maker should draft a reasoned outcome letter that sets out the allegations and the findings on each point, explains the rationale in non-technical language, identifies the policy breach, states the sanction (if any) and the factors influencing its severity, confirms the right of appeal, and reminds the parties of continuing confidentiality obligations.

The decision should then be communicated promptly to the individual, preferably in a face-to-face or video meeting, followed immediately by written confirmation. Undue delay can itself be criticised as procedurally unfair.

Section C: Suspending 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.

Section D: Key Considerations for Employers

Beyond the core procedural concerns, employers also need to be aware of other matters and risks related to the investigation process:

1. 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.

2. 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 is necessary, in line with the requirements of the UK 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.

3. 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.

Section E: Summary

Workplace investigations set the tone for everything that follows. Get the process right and you are far better placed to take firm action where it is justified, to defend decisions if they are challenged and to maintain trust in management. Get it wrong and even straightforward cases can slide into drawn out disputes, bigger compensation exposure and damage to internal culture. The safest approach is to assume every investigation will one day be picked over by advisers or a tribunal and to run it accordingly: clear scope, the right investigator, fair treatment on all sides and a disciplined approach to evidence and record keeping.

Section F: Need Assistance?

At DavidsonMorris, we have substantial experience in supporting employers with all types of employment, HR and workplace investigations. As experienced independent HR investigators, we help employers comply with their legal obligations while supporting positive workforce relations.

Acting in an ethical, 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.

Section G: Workplace investigations FAQs

What is a workplace investigation?

A workplace investigation is a formal process used to gather facts and assess evidence related to an incident, complaint, or allegation within an organisation. It helps employers determine appropriate actions or resolutions.

When should a workplace investigation be conducted?

An investigation should be carried out when there are allegations of misconduct, grievances, disciplinary issues, or workplace incidents such as bullying, harassment, or safety concerns.

Who should lead a workplace investigation?

Investigations should be led by an impartial individual, such as an HR professional or a manager not directly involved in the matter. For more serious or complex cases, external investigators may be appointed to ensure objectivity.

What are the key steps in a workplace investigation?

The process typically includes planning the investigation, collecting evidence, interviewing witnesses, reviewing policies and compiling a report with findings and recommendations.

How long should a workplace investigation take?

The timeline depends on the complexity of the issue, but it’s important to conduct investigations promptly while ensuring thoroughness.

Are workplace investigations confidential?

Yes, confidentiality is essential to protect those involved and to maintain the integrity of the process. Information should only be shared on a need-to-know basis.

What should employers do after the investigation?

Once completed, employers should review the findings, take any necessary disciplinary or corrective actions and communicate outcomes appropriately while maintaining privacy.

Section H: Glossary

Section I: Additional Resources & Links