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Did you know that you could have a watertight, bang to rights Guv employee dismissal and still lose at an Employment Tribunal?

This usually happens because you didn’t follow your processes properly such as failing to investigate properly.

HR Investigations can crop up under quite a few policies such as disciplinary, grievance, bullying and harassment, whistleblowing, sickness absence and capability.

I’m therefore going to set out some pointers for carrying out workplace investigations. If you have any questions or would like a copy of my Investigations Toolkit, then message me today. 

Decide whether to investigate

Before you become Inspector Clouseau, it is worthwhile taking a little bit of time to decide if you actually need to carry out an investigation. There will be some cases where you decide a full blown investigation isn’t necessary e.g. it is a really minor issue or if all employees agree what happened and it seems straightforward.

However, in most cases, it is best to take the slightly more cautious approach and conduct an investigation (even if it’s a small one). What can seem really straightforward sometimes turns into a monster and if you haven’t investigated you will be falling foul of your processes. 

Considering suspension

Sometimes you may need to act straight away if the allegation is really serious and suspend the employee if you believe that there is a risk of further misconduct or interference in the investigation.

Suspension should however be considered as a last resort; the matter should be investigated ASAP and the suspension should be regularly reviewed. Although suspension will be on full pay, and is not a disciplinary sanction, it is a fundamentally negative experience for the member of staff and should be kept to as short a duration as possible.

Don’t let your business become one of the horror stories where the employee is out of sight, out of mind.

Pick an investigator

You'll want an investigator who is experienced and/or trained in investigation techniques, is impartial and perceived as impartial by the employees involved. If you have someone who meets this job description on your payroll, you're in luck. If not, you can hire an outside investigator to handle things for you (a HR Consultant can help with this).

Where possible pick someone to investigate who is as removed as possible from the allegations (so the process can’t be challenged) and has the time and competence to carry out the investigation.

In terms of competence, consideration should be given to the nature of the allegations and any technical aspect. For example, if the allegation were about decisions related to a complex IT issue, it may be sensible to approach somebody with some technical knowledge to ensure that they can conduct a thorough investigation. Where this is not possible, internal or external experts may be interviewed as part of the investigation to give a technical perspective.

Please remember, these aren’t police style investigations. They are carried out to gather the facts or what has happened.  

Plan the investigation

Don’t rush straight in to the investigation. Spend some time planning how it will go. Gather any information that you need to such as 

• the allegation or employee’s complaint, 

• be really clear what you are investigating (it’s not a witch-hunt)

• any supporting evidence, 

• training records, 

• plan who you will need to interview – the employee, any witnesses, the person raising the complaint 

• what are the relevant policies

• what questions do you need to ask

• the timetable for completing the investigation 

• who can support the investigator (HR, a notetaker)

• the letter templates for inviting employees to meetings

Spending the time planning means that your investigation will take less time, is less likely to deviate from what is being investigate and means it is less likely to trip yourself up.

Conduct your investigation

The best way to investigate is to speak to people. Ask questions, gather the information and remember there are two sides to every story.  

The investigator’s job isn’t to make judgement. They need to remain impartial, professional and gather the facts with lots of open-ended questions.

You will need to speak to the employee, any witnesses and the person who complained/made the accusation.

You may also need to go back and re-interview some individuals to clarifying parts of the investigation.

Gather documents and other evidence.

To support the investigation and what has come out of the interviews, it is highly likely you will also rely on documents such as email exchanges and policies and also evidence. This could include CCTV footage, photographs, computer usage records or door card entry reports.

Evaluate the evidence

You then need to figure out what happened. Sometimes this can be straightforward and other times it can be incredibly difficult especially if you have contradictory witness statements/evidence.

Are there still any gaps that need following up on? 

Writing up the investigation

Once your investigation is complete, you should write an investigation report that explains what you did and why. 

If the original scope of the investigation was clear, then writing the report shouldn’t be too difficult. The report needs to set out the facts that the investigator has been able to establish and any facts that remain unclear. Once these have been set out the investigator then needs to apply their judgement about whether or not there is a case to answer on the balance of probabilities (the occurrence of an event was more likely than not to have happened). I have written a blog post on the balance of probabilities if you want more information.

For example, an employee is suspected of stealing money from the office. 

As part of the investigation you identify that Employee A and Employee B both have access to the safe but Employee A been sick for the last three weeks. Whilst the employer may not have concrete proof, on the balance of probabilities, it is more probable than not that Employee B stole the money.

The main risk with writing the investigation report is that the investigator strays into expressing opinions that they can neither substantiate nor provide any reasonable basis for. Investigation reports should never include ‘hunches’ or ‘suspicions’ that have no reasonable substance.

After the investigation

Once the report has been completed, it should be submitted to the person who commissioned the investigation. If the investigator has determined that there is a case to answer, then report will be made available to those involved in a formal disciplinary hearing. The investigator will usually be required to present their report at a formal hearing for the consideration of an independent panel and answer any questions.

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