Workplace Investigations top tip number two: who should investigate the issue?

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. In this series, Chloë provides her top five tips when conducting a workplace investigation to ensure a smooth and impartial process and that businesses are adhering to the law.

Who should investigate the issue?

The statutory Acas Code of Practice on Disciplinary and Grievance Procedures does not specify who should carry out a workplace investigation, and this will ultimately depend on a number of factors. 

The non statutory Acas Investigations guide states that “The role of an investigator is to be fair and objective so that they can establish the essential facts of the matter and reach a conclusion on what did or did not happen. An investigator should do this by looking for evidence that supports the allegation and evidence that contradicts it.”

The guide suggests that deciding who to appoint as an investigator will depend on the seriousness and complexity of the allegation, and that the relevant person should have received the appropriate training.

Importantly, if someone is appointed internally, the company should ensure that the investigator has no prior knowledge of the allegation or is in any way biased or conflicted.

So, in a grievance investigation for example, a member of the HR team may be the best person to investigate a discrete complaint, such as a query regarding an employee’s terms and conditions. If, however the matter is more serious or complex, it would be appropriate for a manger to be appointed to deal with the issue and be assisted by a member of the HR team.

In some cases, an organisation will need to consider outsourcing the investigation to an appropriately trained external HR consultant, or an impartial employment lawyer for a number of reasons, for example:

• Capacity of the HR Team/Senior Managers.
• If the matter is particularly complex and is likely to be a lengthy process.
• If any senior member of the HR team is implicated in the issue, or if the employer is facing allegations of a “systemic” nature.
• It can be useful to use an employment lawyer where the complaint raises complex legal issues which need to be investigated accurately.

Whoever carries out the investigation must be able to demonstrate that they are impartial and objective in that there are no conflicts of interest or prior relationships that could bias the investigation.

Keep an eye out for part three of this series, where Chloë talks about how to plan for a workplace investigation.