Briefing: Employee investigations: what, when and how
Taking action based on allegations of employee misconduct, harassment, bullying, or unsafe business practices can be fraught with risk. Without a comprehensive understanding of the situation, it’s akin to navigating treacherous waters blindfolded. Failing to establish what happened, who is a credible witness, who was responsible, and whether taking further action is appropriate can result in serious repercussions for your organisation. This can potentially lead to costly legal claims, damaged relationships, decreased employee morale, and a tarnished public image.
Hasty, ill-informed actions can turn a manageable internal issue into a far-reaching crisis. By conducting an objective, pre-defined employee investigation however, you can avoid any detrimental consequences by making an informed, appropriate decision – removing the blindfold and returning to calmer waters.
In this briefing, Ben Holt, Managing Director of Loch HR and Loch Training and Wellbeing, aims to establish the importance of an employee investigation, and outline the scenarios in which an investigation is appropriate. He goes through the six-step template published by ACAS, and explains why it might be sensible to engage the services of an independent corporate investigator.
What is an employee investigation?
An employee investigation is an objective fact-finding exercise undertaken when allegations are made against an employee or employees, and which could have a detrimental impact on an organisation’s integrity, culture or legal compliance.
An investigator will speak to witnesses, source CCTV footage, and interview the employee being accused to establish exactly what has taken place. Action will then be taken according to the evidence acquired, which can be appealed should that be necessary.
We believe it is important to highlight the importance of objectivity as part of the investigation. Failure to maintain that objectivity can compromise the credibility of the entire process and undermine the trust of both employees and stakeholders in the organisation.
Examples of when an employee investigation is required
Anyone internal or external can raise an issue that might require an employee investigation. While the reasons for undertaking one are extensive and varied, the most common causes include:
- Employee misconduct;
- Harassment and discrimination;
- Bullying;
- Safety concerns;
- Whistleblower reports;
- Misuse of company resources;
- Lateness;
- Absenteeism;
- Performance issues;
- Misrepresentation;
- Compliance violations; and
- Employee conflicts.
The six steps to ensure a fair employee investigation
According to ACAS (the Advisory, Conciliation, and Arbitration Service), there are six key steps to ensuring a fair and effective employee investigation:
Step one: Organisational preparation
As part of this initial step, your organisation should consider the accusation fully to decide whether an investigation is appropriate. For example, a piece of unpleasant office gossip directed at one employee might be better dealt with by talking informally to the other members of staff. A report of theft, on the other hand, can lead to very serious disciplinary and legal action against the accused individual that could be damaging if the accusation is false.
It’s in this first planning phase of an investigation that its terms will be defined:
- What exactly is going to be investigated?
- How will evidence be gathered?
- How will evidence be presented?
- What criteria will the resultant evidence be assessed to determine wrongdoing?
- What is the timeframe for the investigation?
- Who will lead the investigation, who will be responsible for making the decision based on the evidence?
- Who will hear any subsequent appeals?
In the majority of cases, the role of the investigator will often be fulfilled by the employee’s line manager, or someone from HR. The investigator should not be personally involved in the matter being investigated, their appointment should not raise any conflicts of interest, and they should have good knowledge of the organisation and how it operates.
Having defined the investigation, its attributes and the stakeholders involved, the employer will then pass responsibility to the investigator.
Step two: An investigator’s preparation
ACAS recommends that the investigator start by drafting an investigation plan. This should detail what facts they want to establish, what evidence should be collected to discover those facts, and the steps that they will take to complete the investigation within the pre-defined timeframe.
They might make a list of witnesses that they would like to interview, possible CCTV footage that could be obtained, emails sent between any of the relevant parties, financial records, and even expert opinions on the matter. As well as these investigative elements, they should also check existing company policies to ensure that correct procedures are followed wherever required.
As the investigation progresses, the plan can be adapted to include other pieces of information that have come to light, or updated if the timeframe needs to be changed to accommodate the interview of a key witness.
Step three: Handling an investigation meeting
In its simplest form, an investigation meeting is an opportunity for the investigator to interview anyone who is involved in or has information on the matter under investigation. It is not a disciplinary meeting – this distinction should be made clear – and any disciplinary action to be taken against an individual should be discussed at a separate, dedicated disciplinary meeting.
While there is no statutory right for an employee to be accompanied at an employee investigation meeting, the person being interviewed might feel more comfortable if they have someone that they know and trust in the room during the discussion. Furthermore, if English is not their first language, a companion may be able to facilitate communication.
At the start of the meeting, the investigator should introduce themself and anyone present, outline the purpose of the meeting and the ways that the interviewee’s involvement can assist with the overall investigation, explain the need for confidentiality, and inform the witness that their statement may be used as part of the investigation report.
From there, the investigator should ask a series of questions to establish the facts without becoming adversarial, and invite the interviewee to share any relevant information that they might have regarding the matter.
All of the questions and responses – including any refusals to respond – should be recorded, and a statement should be produced and signed by the witness to confirm that everything they have said is accurate.
Step four: Gathering evidence
Gathering evidence, much like interviewing a witness, should be undertaken in an unbiased way, whereby things that support an allegation are treated with as much importance as things that disprove it.
Evidence can include the previously mentioned witness statements as well as CCTV footage, security logs, emails, financial records, social media content, and any other documentation relevant to the matter.
Throughout the gathering process, the investigator should analyse whether the evidence is relevant, what it might reveal, and how it can be corroborated. Doing so will ensure that the full implications of anything discovered are recorded, ready to be presented as part of step five, the reporting phase.
Step five: Report the investigation findings
Having established the facts to the best of their ability through meticulous evidence gathering, the investigator will usually produce a written report. This will detail their findings and reflect their own conclusions on the matter, accompanied by all of the evidence collected throughout the investigation.
This report will play a pivotal role in determining what subsequent actions are to be taken to conclude the matter. As such, it’s important that it is objectively written, avoids jargon or nicknames, uses appropriate language, and sticks to the matter of fact.
On the subject of facts, it might be helpful to structure the report according to whether they are uncontested, contested, or unsubstantiated. Uncontested facts are those widely agreed upon and supported by strong evidence. Contested facts are points of disagreement or uncertainty that may require further investigation or consideration. Unsubstantiated facts are claims that cannot be verified due to insufficient evidence.
This structured approach allows decision-makers to make informed choices based on the weight of evidence, helping to ensure that actions taken are fair and proportionate to the findings. Additionally, it enhances the transparency and credibility of the investigation process, providing a clear and organised account of what happened.
An investigator may be asked to make a recommendation based on their findings. After all, they are likely to be the person most familiar with the matter, and closest to the investigation. While this should not be an opportunity to suggest possible sanctions, it should recommend either formal action (initiating a disciplinary hearing or changing a company policy, for example), informal action (such as providing additional training), or no further action.
Step six: After an investigation is completed
This step will depend almost entirely on what has been concluded in the report, and what action may have been recommended. You might, as an employer, choose to discuss the findings with the employee, and provide closure or outline the next steps as part of a disciplinary process.
For serious matters such as harassment, misconduct or theft, you will likely proceed by speaking with legal experts, who can guide you through the next steps in line with your organisation’s policies and procedures.
You might also seek clarification on points highlighted in the report before storing it in-line with GDPR guidance, and disposing of it responsibly once it becomes irrelevant or is out of date.
Is an employee entitled to an investigation report?
Generally speaking, employees have a right to be informed about the outcome of an investigation that specifically concerns them. Whether their employer gives them a copy of the report will depend on data protection sensitivities – e.g. whether individuals can be identified – as well as the confidentiality and privacy of the parties involved. If you, as an employer, would like to issue a copy of an investigation report, it would be wise to seek advice from qualified legal professionals.
Why use an independent corporate investigator?
Hiring an independent corporate investigator can be a smart move for companies dealing with sensitive internal issues. These professionals offer a neutral perspective free from internal biases, ensuring a fair investigation. They’re experts in their field, and well-versed in conducting thorough and unbiased inquiries, which can save time and reduce disruption within the organisation.
Moreover, independent investigators follow established best practices and legal standards, ensuring the investigation is conducted effectively and legally. Their findings carry more credibility, making them less susceptible to challenges.
In essence, hiring an independent corporate investigator is a strategic choice. It brings transparency, objectivity, and professionalism to investigations, protecting your organisation’s reputation and legal standing.
Can an employee resign while under investigation?
Yes. Employees have the right to resign at any point, including during an investigation, as long as they provide the adequate amount of notice as outlined in their contract. However, an ongoing employee investigation may still continue to ascertain the facts and take appropriate action, even if the employee leaves the organisation. It might, for example, conclude that an employee’s actions were unlawful, recommending that legal action be taken.
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