Thorough and complete employee investigations can be an effective risk management tool and critical to an employer's defence in contentious proceedings. They also serve as an important mechanism to ensure that potential wrongdoing is caught early and appropriate measures are taken to limit liability and exposure.
Below is a five-step roadmap to conducting employee investigations and explores some key practical considerations.
Step 1: Is an investigation necessary?
For lower-risk workplace grievances, it may be more effective to resolve matters informally without commencing a formal investigation. Conversely, it is important not to make the mistake of bypassing an investigation where the misconduct of the employee seems so obvious that further enquiries are not necessary. The employee may have a plausible explanation which might avoid the need to commence the disciplinary process.
Step 2: Plan, plan, plan
Undoubtedly, an investigation will run more efficiently if key issues have been thought through in advance and there is a plan in place. Considerations include:
1. What is the allegation?
This seems basic, but many practitioners make the mistake of not actively turning their minds to the crux of the allegation at the outset. Often an employee grievance may be presented in an emotionally-charged manner and extracting the key issues at hand will help to streamline the process.
It is important to be nimble and flexible - if a new matter comes to light during the course of an investigation, the investigator may need to revise the scope of their enquiries. Ideally, any new matters will be incorporated into the existing investigation unless it becomes unduly complicated, in which case a fresh investigation may be required.
2. Should the investigation be conducted under legal privilege?
Where the investigation concerns serious allegations with potentially significant legal consequences (i.e. cases of alleged fraud, systemic complaints or harassment), it may be appropriate to conduct proceedings under legal privilege with the assistance of lawyers. A proportionate approach should be taken – conducting the process internally without external counsel will likely be more cost-effective; less disruptive; and will help to ease employees’ concerns.
However, the ability to investigate a matter without fear of disclosure in legal proceedings can be valuable. External lawyers may be more objective and will certainly appear so to third parties, which is of particular significance where the subject matter of the investigation has a regulatory angle.
3. Does any interim action need to be taken?
In highly sensitive situations, it is advisable to limit further fallout pending the outcome of an investigation. For example, where there is an allegation of sexual harassment between an employee and his/her direct manager, it is sensible to assign the complainant to a temporary alternative reporting line, although both employees' interests must be balanced without showing favour to the complaining party.
Employee suspension will be appropriate in more serious scenarios, although employers should proceed with caution. Employees should be suspended on full pay only where allegations against them involve serious misconduct; in order to preserve the integrity of the investigation process; or to safeguard the business and/or employees. The ACAS Code of Practice on Discipline and Grievance recommends that any period of such absence is kept under review, and if during the investigation process it becomes clear that suspension is no longer needed then the employee should be allowed to return to work.
Think through the approach to communications surrounding the investigation and suspension of an employee. Employers should adopt a neutral and consistent line if colleagues or external parties enquire as to the whereabouts of the affected employee: disclosure of the suspension should be limited to those involved in the process.
4. Will emails and company devices need to be reviewed?
In an age of increasing emphasis on data protection and privacy rights, data privacy issues - often technical, complex and nuanced - must be carefully considered. Where a review of emails or information on company devices is required as part of the investigation, ensure the relevant employee(s) have signed an adequate consent form allowing the company to conduct the examination, or that there is a company policy or handbook on which the company can rely.
Step 3: Fact-finding
Once the investigation scope and plan is established, the 'fact-finding' process should start promptly. The investigator should conduct interviews, and gather and record any supporting evidence relevant to the proceedings.
The level of investigation required will depend on the circumstances. Where termination of employment is the likely outcome if allegations are substantiated, a higher standard of investigation will be required. Remember, the investigation is not a disciplinary hearing and it should not be used as a tool to justify a pre-determined outcome. The investigator should be impartial and should pursue lines of enquiry which may prove the employee's innocence, as well as those which may establish his/her guilt.
It is a good idea to prepare talking points and questions in advance of interviews to ensure that relevant issues are covered and to provide a structure to the process. In general, it makes sense to interview the complainant first, asking open-ended questions to invite the employee or witness to provide information, following up with narrower questions once the outline of events has been established.
Step 4: Assess and report
Once a thorough fact-finding exercise is complete, the investigator should be in a position to assess the detail provided and to make reliable, considered findings.
The investigation report should be succinct and factual. If legal privilege has not been invoked, employers should be aware that all documents created during such an action may be subject to disclosure in future legal proceedings.
Step 5: Discipline and follow-up
If after investigation it is determined that formal action is necessary with the possibility of disciplinary sanctions (i.e. a written warning or termination of employment), a separate disciplinary meeting should be held. Company disciplinary procedures should be followed.
After the investigation has concluded, it is good practice to follow up with the complainant to let them know that their allegations were taken seriously, and to encourage them to report immediately any additional claims or retaliation that they might face. Care must be taken to avoid disclosing whether any disciplinary action was taken against other parties.
Above all else, an effective internal investigation requires careful planning and consideration at the outset. Well-executed proceedings will not only help to address issues at an early stage and limit legal liability, but can also go a long way in improving and sustaining employee morale.