Five tricky issues when dealing with workplace investigations

Workplace investigations form part of numerous employment processes, including disciplinary matters, grievances and whistleblowing. They may come at times when emotions are running high and can involve consideration of sensitive and difficult issues. Conducting a fair and reasonable investigation is important to enable full consideration of a matter, and to reduce the risk of legal action. Katherine Pope considers five tricky issues when dealing with workplace investigations, and how best to navigate them.

1. Scope of investigation

The starting point is to consider what kind of investigation or inquiry is needed. This is likely to inform which workplace policy applies and the process to follow. 

It is important to carefully define the scope of the investigation so that this doesn't become unwieldy. Written terms of reference are essentially a framework for what the investigator is being asked to do, and can be a good practical step to record the scope of and approach to the investigation. The terms should also confirm the required output of the investigation. Is the investigator asked only to make findings of fact? Do they also need to make a recommendation, for example, whether there is a disciplinary case to answer?

It is important to consider who will be appointed to conduct the investigation, bearing in mind availability (for what can be a time-intensive process), any specific expertise required and the sensitivity of the matters to be looked into. Remember that, depending on the outcome of the investigation, a separate decision-maker may also need to be appointed.

2. Conflicting evidence

Obtaining evidence is a core part of any investigation. Even following the most careful investigation, there may be conflicting evidence. The investigator should seek to determine what, on the balance of probabilities, took place. This is not a criminal standard of proof "beyond all reasonable doubt" but rather a determination of whether an incident is more likely to have occurred than not.

Where an investigator is unable to make a finding on the balance of probabilities, they should consider whether further investigation is reasonable, or report that they are unable to draw a conclusion.

3. Wellbeing considerations 

Participating in a workplace investigation can take a toll on employees' wellbeing. This can be the case not only for the subject of the investigation, but also for the complainant and witnesses.

Keeping wellbeing front of mind helps maintain employee confidence in the process and can help obtain "best evidence" from witnesses, including where individuals are asked to discuss subjects that they may find sensitive or distressing.

Consider the tone of, and approach to, investigation meetings. There is generally no right to be accompanied at investigation meetings (unless required under the employer's own policy), but this may be permitted as an adjustment in some cases. Consider whether the individual should receive a copy of the notes of the meeting and have the opportunity to comment on these. Sharing information and seeking feedback in this way helps ensure the accuracy of the evidence. There can also be wellbeing benefits in an individual having a record of their evidence.

It will usually be appropriate to remind all witnesses, including the subject of the investigation, that their evidence forms part of a confidential process and should not be discussed more widely. However, when emphasising confidentiality, don't forget to explain who the individual is permitted to discuss the investigation with, in order to provide support. This might be a designated member of HR, or assistance may be available from an employee assistance programme (EAP) provider or similar.

Where possible, let witnesses know whether it is likely they will need to be interviewed again. It can also be helpful to provide an update once the investigation is complete so that individuals know the matter is concluded.

4. Anonymity requests

Witnesses may ask that they remain anonymous or that their evidence is kept confidential. This can be difficult, particularly if the evidence may form part of a disciplinary matter.

Requests for anonymity are sometimes made when a concern or complaint is first raised. Where such a request is made, start by understanding exactly what the individual is asking and the reasons for it. Can their concerns be satisfactorily addressed by taking other steps, such as by providing assurances as to the confidentiality of the process and that retaliation will not be tolerated?

For firms regulated by the Financial Conduct Authority (FCA), regulatory considerations must also be taken into account when a request for anonymity is made.

5. Review of electronic communications - pitfalls to avoid

Finally, consider whether the investigation requires a review of email or other electronic communications. Any email searches should be conducted in line with the employer's policy.

Data protection considerations will be relevant. Consider what personal information will be processed as part of any searches and how this can be kept to a minimum, for example by defining which mailboxes will be reviewed and what period of time the searches will cover. It can be helpful to document consideration of the scope of the searches and the steps that will be taken to avoid reviewing communications that are clearly personal in nature.