Establishing the evidence – what the Oscar Pistorius investigation can teach employers

On the 14th February, it is alleged that the ‘Bladerunner’, Oscar Pistorius, murdered his girlfriend, the model Reeva Steenkamp. The case has been profoundly shocking for the South Africans who had warmed to the Paralympic champion’s determination to succeed.

It has been reported that Mr Pistorius was found by security guards, the first on the scene after the shooting, standing over Miss Steenkamp's body. The prosecution allege that she been shot through the bathroom door. There were four bullet holes in the door.

Mr Pistorius has appeared in packed courts to face a bail hearing. The prosecution is alleging that the murder was premeditated and that Mr Pistorius "shot to kill". Mr Pistorius says it was a tragic accident.

The terrible events of February 14th are only just starting to be investigated. Already, there is controversy as South Africa's most senior detective, Lt Gen Vinesh Moonoo, has been briefed to take over the Oscar Pistorius investigation. Detective Botha, the original lead officer, was removed amidst allegations of seven counts of attempted murder.

It’s not always easy to establish the facts, especially when you like or respect an individual who has been accused of wrong doing. In the workplace – as in the courtroom - it is vitally important to investigate fully before taking any disciplinary action.

In employment law we work to the balance of probabilities, a rather less demanding burden of proof than the criminal courts. Nevertheless, a really thorough investigation is essential to a well conducted process. It determines whether or not the matter will go to a formal hearing. Many managers either do not collect the relevant data or fail to probe and test the data collected sufficiently.

A good investigation ensures that you comply with your company’s policies and procedures and good practice in employment law; it prompts you to undertake a risk assessment and take precautions if necessary and it helps you to ascertain whether there is a case to answer and, therefore, whether any disciplinary action should follow. If action of any kind is to be taken it must be fair and reasonable, and must take into account all of the circumstances, including any mitigation, offered. The purpose of your investigation is to ascertain what those circumstances might have entailed.

There is no magic formula for carrying out workplace investigations. They vary based on the issues and the people involved. Some investigations will be completed quickly with no need to interview witnesses.

Here are my six favourite tips for successful investigations.

• Investigate as soon as you become aware there is a problem. The longer you leave it the more difficult it is.
• Get professional help if needed, for example, digital forensic experts to examine a computer to establish the history. NB remember that information must be gathered in a way that is lawful and doesn’t breach human rights.
• Look at the facts. This isn’t about opinions. It can be helpful to ask a third party who is not directly involved to cast a fresh eye over the investigation. They’ll be able to see holes in the data much more easily than you.
• The investigation must be be done by one person, and any ensuing discipline hearing by another. This is to ensure impartiality and a fair process.
• Keep the evidence secure. Where evidence may deteriorate or be damaged or destroyed, take steps to keep it secure.
• Take a holistic approach. Even where an employee admits to wrongdoing complete the investigation to ensure that you have gathered all the relevant data. This includes considering any mitigation.

If you take account of these points, you’ll find the quality of the investigation you do is much better.