Internal investigations into employee conduct are a sensitive business. If handled incorrectly, the consequences for all concerned can be serious. In this article, Senior Associate Kathryn Evens lays out her tips for ensuring the investigation is fair and robust.
When conducting any internal investigation, whether in the context of a conduct or capability issue or an employee grievance, the way you handle that investigation will have a huge bearing on the outcome of the process.
An effective initial investigation will give you a more complete picture of the facts and an understanding of how your policies apply to those facts, and will increase the chances that you adopt a fair process and reach a fair outcome. An ineffective initial investigation will increase the chances that you miss crucial facts, apply your policies incorrectly, lead to long delays and ultimately conduct an unfair process that leaves you liable to pay compensation.
We have therefore set out some top tips for conducting internal investigations which will maximise your chances of starting the process on the right foot.
Appoint a capable investigator
The individual you appoint to conduct the investigation will have a huge bearing on the success of the investigation process. When choosing your investigator, consider the following points:
- Position – Your investigator needs to be capable of maintaining their integrity and independence throughout the entire process. You should therefore choose someone in a sufficiently senior position, who is not a party to the facts, and who has a sufficiently neutral relationship to all of the individuals involved. Smaller organisations should also bear in mind that they will need a more senior person for the hearing and subsequently the appeal.
- Skills – An investigator who fails to ask relevant questions, makes assumptions and jumps to conclusions is unlikely to conduct an effective investigation. You should identify someone who has the right skillset to carefully consider all of the facts and ask the right questions.
- Capacity – The investigation may prove to be lengthy and complex. You need to consider whether the investigator has enough time to devote to the investigation and whether they have other priorities which mean that they are not able to focus on completing the investigation.
- Individual or Team – Although an individual investigator is usually sufficient in most cases, always consider whether a team of two or three investigators might be more appropriate in the circumstances. Team investigations may be preferable when the issues are particularly serious or the investigation is large-scale and requires a lot of input, but be aware that it may be difficult for a team of investigators to come to an agreement on all of the facts (for example, witness credibility) so may be better placed to conduct paper-based or key witness investigations only.
- Internal or External – In some circumstances, it may be appropriate to appoint an external investigator to conduct the investigation on your behalf. This may be the case where you have insufficient available members of staff in the right position or with the necessary skills, or where the topic is particularly sensitive or legally technical. Be aware, however, that some contracts of employment, policies or collective agreements may prevent you from appointing an external investigator, so always check first if you are considering this option.
Draft clear terms of reference
Even if you appoint the best investigator in the world, they are not going to do a good job unless they have been given terms of reference which clearly set out their investigation mandate. The terms of reference given to the investigator should include:
- Relevant Policies – You need to identify which of your policies are relevant to the investigation. For example, if you are conducting a disciplinary investigation into an employee's alleged breach of your data protection policy, a copy of the disciplinary and data protection policies should be included.
- Purpose of the Investigation – You should clearly set out what the purpose of the investigation is. You should be very specific as to what alleged facts need investigating. For example, if the employee has allegedly breached your data protection policy, which specific facts need to be proven to establish that a breach actually occurred? Also consider whether you need the investigator to establish the facts or to make a recommendation. Again, you should check whether your disciplinary or grievance policy provides any guidance on this.
- Burden of Proof – Investigators should be made aware that they only have to establish whether on balance a certain set of facts happened and provide their reasons for this. There is no need for them to establish, as is the case in criminal matters, that something happened beyond all reasonable doubt.
Conduct interviews carefully
Once the investigator has been appointed, received their terms of reference and the background information, they should consider who they need to interview to establish the relevant facts. When preparing for and conducting an interview, the investigator should bear in mind the following points:
- Order of witnesses – The complainant (if there is one) should be interviewed first.
- Inviting witnesses to the interview – The investigator should always contact witnesses in writing in advance to invite them to an interview. The investigator should explain why that individual is being asked to give evidence, attach their terms of reference so that witnesses can understand the context of the meeting and ask whether the witness would like any reasonable adjustments to be made for the interview. The investigator should not, however, provide questions to witnesses in advance (this would give the witness the opportunity to prepare scripted answers and could lead to allegations that they have colluded in their evidence).
- Note taking – At every interview, an independent note taker should attend to make a contemporaneous transcript of what was discussed. At the end of the meeting, the witness should be given the opportunity to read the transcript, and should be asked to sign every page to confirm that it is an accurate record of the interview or alternatively a typed up version of the notes can be sent to them after the meeting
- Confidentiality – You should ask the witness to keep the investigation confidential and not to discuss the case with others, but you should avoid promising the witnesses that their evidence will be kept confidential. The witnesses should be aware that the evidence that they give will be used in the disciplinary/grievance process.
Issue a comprehensive report
After interviewing all of the relevant witnesses and gathering any additional information, the investigator should produce a final report which delivers on the outcomes expected of them in the terms of reference (i.e. establishes the facts and/or provides recommendations). When producing the report, the investigator should bear in mind the following points:
- Drafts – Draft reports should not be sent out to any parties. This encourages the parties to give feedback which could influence the investigator's final report, compromising the investigator's integrity and independence.
- Staying within the terms of reference – The report should only address the points required by the terms of reference. It should deal with these points clearly and in sufficient detail that all parties can understand how the investigator came to her conclusions. However, if during the investigation you discover new issues that warrant action these should be discussed with HR and the terms of reference should be amended. Those staff subject to the investigation should be made aware of any changes to the terms of reference.
- Adopt a Consistent Approach – You should adopt a consistent approach to every investigation you carry out. If you adopt a different approach to each investigation, you could be accused of and found liable for discrimination. For example, in Garry v London Borough of Ealing  IRLR 681, an employer who adopted a more serious, formal approach when investigating a Nigerian employee for fraud compared to previous fraud investigations that it had carried out was found liable for race discrimination.
- Maintain a Paper Trail – If you find yourself in a dispute with an employee about how an investigatory process was carried out, having a clear paper trail that establishes what process was carried out, when, by who and what was discussed will be crucial. You should therefore create and maintain a complete record of each investigation. Equally be aware that if legal proceedings are brought relating to the investigation, those documents would be disclosable and considered by the Employment Tribunal.
For further assistance and advice on how to conduct an internal investigation effectively, please speak to Kathryn Evens or your usual Foot Anstey contact.