Investigate or be investigated! A practical guide on workplace investigations

Problems can arise in any business and when they do arise, it may be unclear as to how best to take action. This article will deal with some helpful steps that should be followed when deciding whether or not to investigate, and how best to do so.

Step 1 – Is an Investigation Really Necessary?

Quite often problems can be resolved quickly and informally, and the ACAS (Advisory, Conciliation and Arbitration Service) Code of Practice on Disciplinary and Grievance Procedures encourages informal resolutions where possible. Sometimes a “quiet word” is all it takes to resolve a problem and having a constructive chat with your employee about areas of concern may be the best first step to take in order to agree a course of action.

Where a matter is more serious, or where informal action fails, it may be necessary to conduct a proper investigation and commence a formal process to help the employer make an informed decision on the appropriate action to take.

It is important to ensure compliance to the ACAS Code, because employment tribunals must take into the ACAS Code into account where relevant when deciding whether an employee has acted reasonably or not. The tribunal can increase any amount of compensation received by a claimant by up to 25% if they think an employer has unreasonably failed to comply with the Code.

Step 2 – Plan!

Before commencing a formal process, planning will be key. Putting together an investigation plan can provide a structured approach, and can also assist by focusing on the facts that need to be established and what evidence needs to be collected. By having a thorough plan in place before the investigation, this can help streamline the process and ultimately save time.

What should your planning involve?

• Establish exactly what the allegation is. Try and work out the essence of problem as the allegation will frame the investigation. It is also a fundamental principle of fairness that the employee knows the allegation against them.
• Check policies and procedures that may be relevant to ensure correct procedures are followed – has the disciplinary policy been taken into account?
• Identify possible sources of evidence, how the evidence is to be collected and what sources of evidence may be available to establish the facts of the matter.
• Choose an appropriate investigator – first check any relevant policies/ procedures which may stipulate who should carry out the investigation. It is best to avoid having an investigator who is a key witness or who will be holding the disciplinary hearing (unless this is unavoidable for example in the case of a small employer).

Step 3 – The Investigation

After the planning process has been carried out, the investigation and fact finding process should take place as quickly as it is reasonably possible. Witnesses should be spoken to and notes taken of their recollection of events before memories fade. It is important that the investigation takes place before taking any disciplinary action otherwise you risk being in breach of the ACAS Code or the principles of fairness as established by case law.

In potential future disciplinary investigations, a flawed investigation can undermine the disciplinary process and leave employers vulnerable to claims for unfair dismissal. It is therefore very important to ensure that any investigations are fair and thorough.

The amount of investigation required will vary depending on the individual circumstances of each case.  The legal test is that an employer must hold an investigation that is “reasonable in all the circumstances”. The non statutory ACAS guide to conducting workplace investigations states that the more serious the allegation, the more thorough the level of investigation required.  An employer should however make sure that any investigation conducted is no more than is necessary to ascertain the full facts.

Employees have no statutory right to be accompanied at an investigatory meeting, although it is important to check any policies/ procedures in place, as a contractual disciplinary procedure may give them that right. In some cases it may be of benefit to allow the employee to be accompanied at an investigatory meeting. For example, it may be a reasonable adjustment for an employee with a disability, or helpful where English may not be the first language of the employee, or if they are particularly vulnerable.

After the investigation has taken place, it is useful to prepare a report summarising the steps taken, the allegations and the evidence available in respect of them. ACAS has produced a template investigation report for employees to use and in general terms the report should be factual and concise.

Step 4 – Next Steps

After the investigation process has finished, the person who made the decision to appoint the investigating officer should decide on the next steps taking into account the investigation findings.   In short, this will involve deciding whether a disciplinary hearing is needed or not. If disciplinary action is to be taken, then company disciplinary procedures should be followed.