The #MeToo and #TimesUp movements have inspired many to come forward to call out workplace misconduct and harassment. While this is undeniably important and right, many business owners unfortunately need to be better prepared to deal with the rise in workplace investigations.
It’s vital that serious cases of misconduct in the workplace are dealt with immediately, with the level of gravity that they deserve. However, a disagreement between co-workers or a screaming boss who undermines colleagues may not be a claim that qualifies as harassment under UK law. Employers can do more to evaluate the potential seriousness of allegations and reconcile those that are misguided or raised for the wrong purposes.
The current landscape has heightened the need for managers to ensure that their organisation has sound and strategically-aligned practices in place for preventing, receiving, and responding to harassment, discrimination and other workplace-related claims.
Advice for Employers Conducting an Investigation
Workplace investigations can feel like a difficult balance. Employers must deal with how to maintain the perception that they are both neutral in their investigations and taking effective action. The value of a proper investigation cannot be overstated; it plays a pivotal role in the disciplinary process and provides an important safeguard to the employee’s right to procedural fairness.
The purpose of an investigation should be to make an informed and impartial decision. It is a vital part of the process to:
- Find out whether there is a case to answer
- Ensure that everyone is treated fairly
- Gather evidence from all parties
Appoint an Investigating Officer
When beginning an investigation in the workplace, managers should follow a fair process to protect everyone involved in a disciplinary or grievance case. Employers should make sure that they are prepared and have the right managerial structure to enable a fair process, and this includes the initial investigation. If reasonable steps are not taken to safeguard employees and the investigation is not carried out appropriately, any decisions made in the disciplinary or grievance case are likely to be considered unfair.
Where possible, the person tasked with conducting the investigation should not be someone directly involved in the case. Having someone responsible as an investigating officer to carry out the role of fact finder will demonstrate an unbiased approach and support the need to collect evidence without the burden of previous knowledge of the case.
The person investigating should:
- Be fair and objective
- Follow policy and guidelines
- Gain as much information on the case as is reasonable to establish the facts
- Obtain balanced evidence from all parties
- Keep the case confidential
In a disciplinary case, the investigating office should be different to the person that will hear the disciplinary if further action is needed. However, in a grievance case it is usually best for the person hearing the grievance to investigate the issue.
Ensure Allegations are Addressed in a Timely Manner
The investigation should be conducted within a reasonable time frame and without delay. This is to ensure the employee is treated fairly and to ensure that evidence is fresh and accurate. If employers fail to address claims promptly, they are more likely to escalate.
It’s wrong for managers to consider that any claim will simply resolve itself. Every claim should be properly investigated without prejudice and bearing in mind that poorly managed grievances are most likely to escalate and cause harm.
Temporary Suspension may be Best Course of Action
If considered necessary, you may suspend an employee (on full pay) while the investigation is underway. This should only be used as a last resort and in certain circumstances, for example if there is a risk that the employee could tamper with the investigation or poses a risk to the business. It should be made clear to the employee that the suspension is temporary and is not an assumption of guilt or a disciplinary action.
Gathering Evidence Should be the Priority
By investigating the problem, you can better determine the severity of a workplace dispute and take the necessary actions to resolve the issue for the good of both the employee and the business.
In both disciplinary and grievance investigations, you might need to get information from:
- The employee
- Other employees involved
- Any other witnesses
The right to be accompanied does not apply at this stage, however it is sometimes worth exploring this option if deemed appropriate, for example as a reasonable adjustment. What the investigating officer is ultimately trying to do is find out if there is a case to answer. It is important to note that no formal action should be decided at this stage. You may find after speaking to all appropriate people that no formal process is needed.
Consider Outsourcing Complex or Serious Claims
Following an initial investigation, employers may want to consider outsourcing claims to a third-party investigator.
In more serious cases, or those that cannot be resolved internally within reason, outside investigators add objectivity and legal protection. Disputes that are prolonged can put businesses at risk and cause unnecessary disruption to business operations. Appointing an external professional to carry out a workplace investigation may reduce the investigation timeframe and may better serve both employees and businesses.
If you would like to speak to an HR adviser about a current dispute or would like further support on employee compliance and procedures relating to workplace investigations, please get in touch. We would be more than happy to have an initial call or meeting to discuss your circumstances.