Workplace Investigations top tip number one: when should an employer start 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.

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.

What are workplace investigations?

Workplace investigations are necessary when an organisation needs to establish the facts of a particular complaint or incident.

An investigation is a fact-finding exercise and must be undertaken impartially and fairly so that the organisation can decide on the next steps.  If the organisation makes a decision without completing a reasonable investigation, it could invalidate any subsequent decision and potentially leave the employer open to legal challenges.

The types of workplace issues which could lead to an investigation include:

• Allegations of misconduct
• Complaints of bullying and/or harassment
• General grievances
• Concerns raised using the organisation’s Whistleblowing Procedure

An employer can be made aware of an issue in a number of different ways; through a grievance raised by the employee or from discovering an allegation of misconduct.

If the employer is made aware of a complaint it should act quickly to investigate the matter.  If there is any unreasonable delay, this could be detrimental to the investigation and the ultimate outcome.

Likewise, if an employer discovers an issue which could lead to disciplinary action against an employee, it must commence a fact-finding investigation immediately.  There will also be considerations as to whether the employee should be suspended, depending on the nature and severity of the allegations.

Importantly any unreasonable failure to follow the ACAS Code of Practice on Disciplinary and Grievance Procedures (ACAS Code) can lead to an adverse finding in the employment tribunal including an increase of up to 25% in a compensatory award.

From October 2024 there will be new obligation on employers to take reasonable steps to prevent harassment of a sexual nature.  If a worker raises a concern regarding this particular type of harassment, then it is imperative that the employer acts quickly to establish the facts in order to help mitigate against any future claims.

Keep an eye out for tip number two, which goes into detail on who should carry out the investigation.