When there are allegations of serious misconduct in the workplace, conducting an investigation is vital to establish the facts and decide on the appropriate next steps. It is rarely a sensible option not to complete an investigation. For organisations across all sectors, making the right decisions at the outset of any workplace investigation is crucial to prevent minor issues from escalating into major legal concerns.
Joseph Lappin and Charlie Thompson, partners in our Employment team, have experience conducting workplace investigations for employers. In this article, they outline the key considerations and questions you should address when initiating a workplace investigation.
Is a workplace investigation always necessary?
When there is an allegation of misconduct, it is usually unwise to do nothing. Any allegation that indicates a potential breach of legal obligation, industry or regulatory standards, or internal policy should be considered carefully and may need at least some form of investigation.
Even seemingly minor issues, if ignored, can develop into significant legal or reputational challenges. Organisations should take a proactive stance, ensuring that any credible complaint or concern is investigated promptly. If similar allegations repeatedly appear over time and the employer has not taken proper action, it may be difficult to justify its previous inaction.
What needs to be investigated and what should be included in the scope of a workplace investigation?
Although it may appear self-evident, failing to identify the precise scope and terms of reference for a workplace investigation is critical. Without a well-defined focus, there is a significant risk of the inquiry expanding beyond its intended remit, risking “mission-creep”.
Carefully defining the boundaries of the workplace investigation from the outset ensures the process remains efficient and fair, focusing only on the specific issues that have been raised.
How will evidence be gathered?
An investigation is essentially a fact-finding process, so a key step is to consider where relevant documentary evidence might be and which individuals might have witnessed the alleged misconduct.
Do you already have procedures for investigating the issue?
Your company should already have grievance, disciplinary and whistleblowing procedures in place. The key is to select and apply the procedure most appropriate for the specific situation.
Even where a relevant process exists, it is essential to evaluate whether it fits the circumstances of the investigation. By choosing the correct process, you guarantee the allegations are addressed effectively and fairly.
How will confidentiality be preserved?
It is paramount to maintain confidentiality throughout an investigation. You need to consider how sensitive information will be managed, establishing clear protocols for storing and sharing documents. It is equally important to regularly remind all those involved of their duty to keep information confidential.
Communications with those affected should be thoughtfully worded to provide only necessary information, preventing any inadvertent disclosure of sensitive details. Any breach of confidential information should be dealt with promptly.
Should an employer use an internal or external workplace investigator?
It can be possible to appoint an individual within an organisation who is familiar with the issues and personalities to conduct an investigation. In some cases this is the most appropriate step. However, it can lead to allegations of bias or accusations of an “inside job”.
This is why engaging an external investigator can be advantageous. An appropriately chosen external investigator brings a level of independence and objectivity to the process, helping to calm concerns of bias or internal influence.
Does legal privilege apply to workplace investigations?
It is vital to assess whether legal privilege applies to documents produced during an investigation. In certain circumstances, communications and materials created by legal advisers are protected and cannot be disclosed as evidence in later proceedings.
When planning your investigation, you should decide whether your organisation wishes to benefit from this protection, as it can have a significant impact on how information is managed and shared throughout the process.
How long should a workplace investigation take?
You need to strike the right balance between conducting a comprehensive investigation and working within the available timeframe. While it is important to ensure all aspects of the investigation are examined, you must also be mindful of any deadlines or time constraints, so not to compromise the integrity of the process.
What happens to the individuals involved during the investigation?
Where colleagues make allegations against each other, you must consider how to maintain a fair status quo while the investigation is ongoing. This will avoid criticisms of marginalising employees and further complaints.
What happens at the end of the workplace investigation?
At the end of the investigation, it is crucial to determine who within the organisation will be responsible for deciding the next steps. There should also be consideration given to the method by which these decisions will be communicated. Additionally, it is important to have clear procedures in place for handling any appeals or complaints from individuals who may be unhappy with the outcome.
Contact our employment lawyers
If your organisation needs support conducting a fair, compliant and efficient workplace investigation, our employment solicitors can guide you through every stage. Visit our workplace investigations expertise page to learn more or contact our Employment team.
