New ACAS Guidance on conducting workplace investigations
Most organisations will have in place a comprehensive disciplinary policy that sets out the procedure to follow when there are concerns about an employee's conduct or performance. Most employers will also know that carrying out a thorough investigation is essential to show that a fair procedure has been followed.
Even so, many claims for unfair dismissal succeed because of flaws in the investigation process. These can range from a basic misunderstanding of the investigator's role - it is not the investigator's responsibility to prove the guilt of any party. Rather, the investigator's role is to carry out a fact-finding exercise to establish whether or not there is a case to answer and to be fair and objective. Excessive delays during the investigation or employees arguing that they were unaware of the allegations against them are other common mistakes. Other problems can arise when employers fail to investigate any new allegations that come to light during the investigation.
The ACAS Code of Practice on Disciplinary and Grievance procedures states that a key step in establishing procedural fairness is to show that the employer has carried out any necessary investigations to establish the facts of the case and to give the employee the opportunity to respond to the allegations. In addition, ACAS has recently published comprehensive Guidance Conducting Workplace Investigations which sets out details of the essential decisions and actions that employers of all sizes should make when deciding to conduct an investigation.
There is a helpful "At a glance" chart which sets out the 6 key steps in carrying out investigations.
- Step 2 Investigator's preparation
- Step 3 Handling an investigation meeting
- Step 4 Gathering evidence
- Step 5 Writing an investigation report
- Step 6 After an investigation is completed
An important step in terms of Organisational preparation is to have clear terms of reference for the investigation. These will help to complete the investigation without delay, set out clearly the investigator's remit and clarify how the findings should be presented. Choosing who should carry out the investigation will depend on the seriousness and/or complexity of the matter. Questions to consider include whether the investigator is personally involved in the matter or likely to be influenced by people involved in it, whether there is any conflict of interest, whether the investigator has good knowledge of the organisation and how it operates and is trained or experienced in conducting investigations, whether the investigator has good written and oral communication skills and of course, whether the proposed investigator is available.
The Guidance includes a useful example of an Investigation Plan. This helps the investigator to focus on what facts need to be established, what evidence and sources of evidence need to be collected and which witnesses need to be interviewed.
Many investigators are fairly confident about conducting the investigation but struggle with the preparation of the Investigation Report. How long should it be? How much detail needs to be included? Once again, the Guidance includes a useful template for the Investigation Report and how it should be structured.
Interestingly, the Guidance makes the point that the Investigation Report should reflect the investigator's own conclusions. Although the investigator can seek advice from a third party such as HR, the conclusions must be their own. This reiterates the point made in the recent case of Ramphal v Department of Transport where the EAT was critical of HR appearing to influence the findings of a manager's disciplinary investigation and intervention that appeared to change a manager's conclusions about the level of the misconduct and the penalty that should be imposed – from a final written warning to summary dismissal for gross misconduct. In the words of the EAT;
"Human Resources must be very careful to limit advice essentially to questions of law and procedure and process and to avoid straying into areas of culpability."
In addition to the issues considered above, the Guidance also covers specific topics such as dealing with reluctant witnesses, matters that are also subject to criminal investigation and proceedings, the circumstances when it would be helpful to permit an employee to be accompanied and what to do when there is a refusal or failure to attend the investigation meeting.