Conducting Investigations

This information was distrubuted at a Davidson Chalmers Employment Law Seminar at the Carnegie Conference Centre on Wednesday 12th September 2012

The Breakfast Seminar addressed “Conducting Investigations”. To get to a decision in a fair and balanced way is the objective of any good investigation.

In any unfair dismissal tribunal employer would give evidence first through the person who did the initial investigation. Ability for employee to respond may be stifled by not knowing who gave the evidence against him/her.

Employee Grievances:
ACAS Code Rule 33 – “Employers should adjourn grievance meeting for any investigation that may be necessary.”

Employee Absence:
Investigating problems of short and long-term sickness absence are essential for a number of reasons. Record keeping and reasons for absence important.

Employee Performance Issues:
“Whenever a man is dismissed for incapacity or incompetence it is sufficient that the employer honestly believes on reasonable grounds that the man is incapable and incompetent.

Attributes of a good investigator-
• Understanding
• Genuine and impartial
• Respectful
• Flexible
• Self aware
• Analytical

Investigation skills include:
• Building rapport
• Active listening
• Asking open questions
• Probing
• Summarising
• Sensitive challenging
• Seeking contrary evidence
• Note taking
• Time, people and process management.

Use of a voice recorder is not advised since verbatim records can work against the employer.

No statutory right to have a comparison at an investigatory meeting. This meeting will visit the two versions of events and should assist how do you establish if there is a case to answer. Investigatory meetings are confidential.

Meeting should set out what the concerns are. More than one investigatory meeting can be held and can be construed as fairer. Meetings should be kept to single issues unless spelt out at the beginning. Do not make up your mind at the meeting, go away and reflect.

In conducting an investigation there is a requirement for the employer to co-operate with the employer. Establish the facts but remember investigations are not Disciplinary Hearings and there should be no hint of pre-judgement.

More senior members of staff may require more thorough investigation (because of the commercial implications).

Suspension
Appropriate in instances of alleged serious misconduct.

Appropriate where:-
• There is a potential threat to the business or other employees
• It is not possible to properly investigate the allegation if the employee remains at work
• There is a concern that evidence may be destroyed
• There is a concern there may be attempts to influence witnesses
• Where relationships have broken down

Consider carefully what to tell clients, colleagues and external third parties (less is more).

Suspension – Further Points to Note

• Suspension should be as short as possible
• In most cases should be on full pay
• Decision should be kept under regular review
• Particular care should be taken where the matter concerns possible criminal allegations
• Suspension is not a form of punishment
• Employer must be satisfied it has reasonable grounds for suspension

The importance of Record Keeping

• A paper trail is vital
• It is essential evidence that would be put before an Employment Tribunal in future and it is proof that your investigation was thorough
• After the investigation prepare detailed report and recommendations
• State in the report that you are not the decision maker but Investigating Officer only
• Summarise the principal findings within the report

Checklist for Investigating Officers

Your Responsibilities

As Investigating Officer your responsibilities are to:-

• Gather all the relevant facts promptly before people's memories fade
• Establish the exact nature of the allegations and the evidence to substantiate these
• Summarise your findings in an investigation report
• Recommend whether or not the allegations should be considered at a Disciplinary Hearing
• Present evidence at any Disciplinary Hearing and answer questions as required

In carrying out an investigation you should:

• Ensure the investigation is carried out as quickly as possible
• Be thorough and fair
• Remain impartial and objective – do not make assumptions
• Considering whether there are any mitigating circumstances
• Maintain confidentiality as appropriate, clients concerned with the incident as appropriate to establish the full facts
• Seek supporting evidence, including any that is favourable to the employee
• Obtain statements and notes and attempt to resolve any discrepancies

Structure for Investigator's Report

• Front cover
• Introduction – background and information relating to employee and background information relating to workplace
• Grievance investigations – information relating to grievance, i.e. how it was received, applicable law, etc
• For each part of grievance – detail allegations, employee's response and contrary and support evidence
• In the case of misconduct investigations – allegations, any suspension, disciplinary procedure, etc
• Details of investigation
• Findings in fact
• Possible solutions – mediation, remedy the issues, etc
• Find selection – recommendations, next procedural steps, etc.