Friday, 29 September, 2017
Kathryn Dent, DIRECTOR
In our June webinar, cognisant of the fact that many HR Practitioners are increasingly involved with or conducting investigations, I highlighted the mistakes to avoid when conducting an investigation to ensure that the process and the outcomes are fair, transparent, legally compliant and defensible.
It is difficult to recommend a model investigation process because the process of an investigation will necessarily depend on the allegations, the participants and the workplace. However, avoiding the mistakes set out below should steer organisations in the right direction to ensuring that their findings and action taken in response to the findings, are solid and defensible.
My “top 10” mistakes, and how to avoid them, are reproduced here.
1. Not following the process
Fortunately, it is rare to find an organisation that doesn’t have a grievance or complaint policy (and those that do not have one should consider drafting and implementing one as a priority).
Policies vary from organisation to organisation so it is important to be familiar with what is required once the complaint or grievance is received. Whilst a policy may not be contractual in nature (the best policies aren’t), they are there to provide consistency of approach and security to employees and to that extent compliance with them is highly advisable.
Generally, policies have a multi-step approach, starting with internal resolution before the matter is escalated. The best policies avoid mandating that each step must be followed (sometimes this is not appropriate given the identity of the parties involved), reserve discretion and afford flexibility to cater for different circumstances. Importantly, the policies should not commit the organisation to commencing and concluding an investigation within a set timeframe. Instead, a general commitment to expediency should suffice, as a means of reassuring the parties.
If you need to deviate from the process set out in the policy, make sure you have sound reasons for doing so and that you consult with those involved in the investigation about this to obtain their consent. This minimises the risk of technical objections and challenges on this point at a later date.
2. When failing to plan is planning to fail
Once you have decided to investigate, which can sometimes be a challenging step in itself (think about the “off the record” or “confidential chats” employees want to have, usually for fear of retribution), the next phase is planning it. Failing to plan an investigation can affect the outcome and defensibility of findings. For example, it could lead to witnesses and evidence being overlooked, policies not being complied with, insufficient support, an exacerbation of health issues caused by the behaviour the subject of the investigation, an aggravation or repetition of behaviour and further damage to working relationships. Planning will help to mitigate these risks. Planning involves:
- Identifying witnesses, additional to the complainant and respondent
- This may or may not be capable of being done early depending on how comprehensive the initial complaint or grievance is.
- Only interview those who are likely to have knowledge of the matters or who have been identified as potential witnesses by the complainant or the respondent.
- Working out the order of interviews
- Generally, interview the complainant first and then the respondent, with any witnesses last. Remember that any new material from witnesses that could affect the findings may necessitate a further interview to put that material to the person (at least of the respondent).
- Whether respondent or witnesses follow the complainant may depend on:
- The extent of confidentiality that is required to preserve the integrity of evidence including the respondent’s answers; and
- How likely it is that the respondent will admit to the allegations and obviate the need for interviewing the witnesses.
- Working out the mechanics of the interviews
- Where will they be held? Away from the workplace to protect confidentiality?
- How will they be recorded? Audio recording requires consent of the party being interviewed. If you are transcribing by hand or recording digitally on an electronic device, best practice dictates that the written statement should be signed.
- When will they be conducted?
- How long is each interview likely to take?
- Status quo
- Whether or not the parties should remain in the workplace is an important consideration to minimise further damage to workplace relationships or potential health-related issues.
- There is also the question of whether to suspend the alleged wrongdoer, to avoid a continuation of the behaviour in question and/or victimisation. Suspension on full pay is often sanctioned for cases of serious misconduct and is made easier if there is a clause in the employment contract permitting such an action.
- Selecting the investigator is also part of the process and leads into a discussion of the next mistake.
3. Not choosing the right investigator
Remember there are a variety of types of investigators whose job it is to hear the alleged facts and complaint, obtain responses, marshall evidence, assess it on the balance of probabilities and make findings.
The selection of an investigator will depend on the issues at stake (for example, are they potentially press-worthy and reputationdamaging if made public? Could they result in litigation? Would a lawyer be a better choice in order to potentially attract legal professional privilege and preserve confidentiality?)
The selection will also depend on resources (Can the organisation spare an internal resource being devoted to hours of interviews? Does the internal investigator have sufficient experience? Could the internal investigator be accused of bias if they have had dealings with the participants in the investigation?).
4. Investigator as decision maker
While the investigator’s primary responsibility is to determine the truth of the allegations as far as he or she can, the investigator should also be conscious to avoid acting in a way which may lead to challenges to his or her findings.
On this basis, it would be a mistake to have an investigator as decision-maker on anything other than very minor matters. If the findings could lead to a termination of employment, then separating the investigation function from the decision-making function is prudent. An “independent” decision maker can review the report and accept or reject the findings and then determine the most appropriate course of action without the added pressure of having to defend the process and course they adopted, which may happen if they were the investigator.
5. Relying on “untested” information
Information should be tested as far as possible. If untested information is going to be relied on, the investigator should be able to justify why that reliance was reasonable in the circumstances.
For example, it would be a mistake to accept as fact information presented by the complainant or witness if there was a means to test it (for example if a document existed which would verify the information presented or event or if a third party witnessed it).
6. Not knowing the role of a support person
Within the unfair dismissal regime industrial tribunals may find a termination to be harsh, unjust or unreasonable if the unfair dismissal applicant was unreasonably refused the opportunity of having a support person present during any discussions relating to dismissal.
The case law which has developed in this area has clarified that a support person’s role is not that of an advocate or representative, but is limited to assisting the relevant employee.
On this basis an investigator has the right to caution or silence a vocal or obstructive support person or, in extreme cases, suspend or terminate the interview.
7. No logical order
The order of interviews will help ensure the investigation runs smoothly and expeditiously, the latter being important to preservation of confidentiality, protection of participants, potential restoration of the relationship or timely disciplinary action at worst.
Whilst it is not fatal to have to reinterview witnesses, having an order to the process will minimise this potential. A logical order means that all allegations or accounts can be put to a person in the one interview, and this is usually best achieved if the order of interviewees starts with those who know the most. This can also flush out additional interviewees or other evidence.
8. Blurring the investigation and the disciplinary response
If you have followed the recommendation to separate the roles of investigator and decisionmaker, then this potential blurring is less likely to occur.
The disciplinary process should be separate and distinct from the investigation. The disciplinary process is about identifying what action is appropriate based on the findings and other relevant material (such as an employee’s personal circumstances and other extenuating factors). At its most simple, the disciplinary process starts when the investigation findings are accepted and should be embarked on in a manner that is procedurally fair. Procedural fairness can be dictated by applicable contractual obligations, policies or procedures. It also arises from the general proposition that any proposed disciplinary action should be put to the employee, a response obtained and consideration given to that response (relevant to defending an unfair dismissal).
It is appropriate to warn the employee prior to the meeting of the potential for dismissal, indicate that all circumstances will be taken into account, and allow a support person to be present.
9. Not dealing with the findings and implementing recommendations (if there are any)
There are several reasons why it is a mistake to not deal with findings and/or not to implement recommendations.
- be seen as excusing unacceptable workplace behaviour, thereby prejudicing the ability to discipline other employees for similar behaviour in the future;
- adversely impact staff morale and productivity, and at worst may lead to staff turnover or inability to attract new staff;
- undermine the integrity of the complaint or grievance procedure and as a consequence, employees’ confidence in invoking it;
- have health and safety implications if a person continues to engage in bullying or harassing behaviour;
- restrict an employer’s ability to mount a defence, ie making it difficult to demonstrate it took all reasonable steps to prevent any unlawful conduct.
10. Not learning from mistakes
The final takeaway is to review the investigation once it is completed. Were there lessons to be learned? What were they? For example:
- Was the relevant process easy to follow?
- Were employees able to access and rely on the policy, or were there impediments? Can those impediments be eradicated and how?
- Were there any additional matters raised during the investigation that require attention by way of unaddressed behaviours, non-compliance with policies, flaws in processes, gaps in policies, other breaches?
- Was confidentiality and non-victimisation maintained or should any potential breaches be separately investigated and disciplined?
- Has a systemic issue been identified that requires broader investigation or rectification?