Workplace Investigations Legal Advice for Employers

A workplace investigation is a vital step that employers need to take when dealing with serious grievances in a work environment. It should be carried out without undue delay, as soon as management has been made aware of a grievance, and ahead of any grievance outcome response.

Employees may raise concerns regarding all types of circumstances, such as harassment, working conditions, pay, or improper procedure. Maintaining an unbiased approach when processing these grievances can not only show the principles you value as an employer, but also avoid any future disputes such as discrimination claims or constructive or unfair dismissal claims by an employee.

Conducting a proper investigation can help to clarify the facts surrounding a grievance, and decide how to resolve the situation appropriately and fairly. An experienced investigator will collect and document all evidence regarding the case, and make a recommendation on the grievance outcome.

If appropriate, the investigator can also investigate whether there is misconduct by any other employee, and whether they have a case to answer including potential formal disciplinary hearings and actions. It may be advisable for the company to utilise separate investigators for different issues e.g. one to investigate a grievance and one to conduct a follow-on or related disciplinary investigation. Again, this is something on which the Analysis Legal team can provide advice.

Having the support of a specialist workplace investigator can also ensure your compliance with the ACAS code.). If a Tribunal were to conclude an employer has not followed the ACAS code, and therefore acted unfairly, they may decide to increase an employee’s award in a future tribunal case by up to 25%.

The ACAS code outlines the definition of who can be an appropriate investigator in a workplace investigation.

Firstly, anybody who is tasked with leading an investigation should be trained in both investigations and the relevant grievance and disciplinary procedures. There must be a clear understanding of the scope of the investigation and how it fits within the grievance and disciplinary processes.

An employee of the company can be an investigator, although the ACAS code recommends that they must be senior to the investigated employee. They should also not have witnessed any events that have triggered the grievance in question. All conflicts of interest should be managed and resolved ahead of the investigation, and this can represent a challenge, especially for smaller companies.

It can be complicated for businesses to indicate an appropriate internal investigator. Appointing an external investigator is generally considered a simpler and more favourable option to conduct grievance and disciplinary investigations in the workplace.

Some of the circumstances which make an external investigator more effective include: 1) Not enough resources to appoint separate (and sufficiently senior and independent) managers to do the investigation and chair the subsequent grievance or disciplinary hearings. 2) High complexity of the case. 3) Allegations by or against senior executives. 4) Cases which may attract media attention.

The expert Workplace Investigation Lawyers at Analysis Legal can help you process investigations properly, ensuring your interests as an employer are protected. Contact us today to assess your case.

An interview should first be conducted with the employee who has raised the grievance. This is to ensure that the employer and grievance investigator is clear as to the scope of the grievance and will be viewed as a step of a proper procedure if the case was brought to an employment tribunal.

Every investigation is unique, and many circumstances can affect its scope and outcome. Defining the aim and scope of the investigation and communicating the terms clearly from the start can help manage time and resources effectively.

All internal policies should be reviewed, considering which are applicable to the case.

The investigator may be limited to fact-finding, or be able to make recommendations in regards to grievance outcomes or disciplinary actions; their role should be clearly defined and communicated to all relevant parties.

The terms of reference of a workplace investigation should always state whether the investigation is considered to be privileged and/or confidential. Legal privilege can be a complex issue. This is why defining a clear communication protocol that must be followed through the investigation procedure is crucial.

As mentioned above, each employee investigation regarding misconduct is different, and can result in many different processes. However, a general outline of a workplace investigation process would follow these steps:

1. Obtaining statements from witnesses, ideally as soon as possible to ensure the accuracy of their recollection.
2. Conducting investigative interviews, including the employee who is the subject of the investigation – although this is not mandatory.
3. Collecting documentary evidence, including employment contracts, staff handbooks, and the company’s disciplinary policies.
4. Evaluating the evidence to conclude the investigation was thorough, unbiased, and conducted with no mistakes.
5. Making recommendations, but not conclusions. Failure to adhere to this limitation may make employers liable for tribunal claims.

Tailoring the process of a workplace investigation to your business, values, and policies is our priority. We will always advise you with the goal of reaching an outcome that works for your situation.