Workplace Investigations top tip number four: What are the key issues to consider during a workplace investigation? 

Chloë Leyland, Employment Partner at gunnercooke, has over 15 years post qualification experience in employment law, and is an expert in how to deal with workplace investigations.  

So far in this series, Chloë has provided three of her top five tips when conducting a workplace investigation, all to help you ensure you’re carrying out a smooth and impartial process and that your business is adhering to the law. 

In her last article, ‘Defining the Scope and Objectives of the investigation’, Chloë highlighted the importance of following the statutory ACAS Code on Disciplinary and Grievance Procedures when carrying out a workplace investigation.  

Now, in part four, she’ll discuss what key issues you need to consider during a workplace investigation. 

Key Considerations 

As a minimum, the investigation needs be conducted “reasonably” to avoid rendering it unfair.  Whether an investigation is carried out “reasonably” can depend on several key factors and below are a few issues that could arise which could affect the ‘reasonableness’ of any investigation: 

Confidentiality 

It is imperative that the investigation maintains confidentiality as much as is possible. A complainant may sometimes wish to remain anonymous, and this can be problematic. In some cases, the matter cannot be investigated unless the complainant is prepared to disclose their identity, however there are times when an investigation can be conducted without having to name the complainant. If names are provided as part of the investigation, witnesses should be informed at the outset of the meeting that the contents of the meeting are strictly confidential and must not be disclosed.  

Witnesses 

The number of people that you speak to will depend on the nature of the investigation. A balancing exercise must be carried out to ensure the investigation is not unnecessarily wide, but that all relevant witnesses are spoken to; this is not always easy, and the investigator should be prepared to explain why any suggested witnesses were not spoken to during the investigation. 

You should also consider the running order of the witnesses. In a grievance of whistleblowing investigation, I would usually speak to the complainant/whistleblower first in order to ensure that the complaint is properly understood and that you are in receipt of all relevant information/evidence before proceeding. 

In a disciplinary investigation, I would start with the relevant witnesses identified during the scoping stage; this will usually be the person who reported the alleged wrongdoing. 

Meeting 

Prior to meeting any witness, you should ensure that the meeting complies with the company’s policies and procedures which may or may not include a right to be represented at the investigation.  

Ensure that the arrangements for the meeting are known in advance, i.e. will you bring a notetaker, or will the meeting be recorded? Will it be held electronically or in person? Do any adjustments need to be made to accommodate the witness, such as will they require regular breaks? 

On the next, and final part of the series, Chloë will be sharing her final tips on how to report your findings. Make sure to keep an eye out!