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New Guidance for Workplace Investigations

Last week the Advisory, Conciliation and Arbitration Service (ACAS),released guidance on how to conduct workplace investigations. An investigation should establish the facts. It is not usually part of the formal discipline because no sanction will be awarded as a direct outcome.

The need for a fact find arises when there is alleged misconduct but it must also take place into matters of poor performance, grievances and even ill health; though usually this is in the form of a welfare meeting.

Whatever the issue it is important to establish the facts so the next appropriate steps can be decided. A thorough investigation is essential as any dismissal without a proper investigation is likely to be deemed to be unfair by a tribunal.

  • Identify the need for an investigation. Sometimes it will be very quick and sometimes it will be much longer. If a more detailed investigation is needed it should be done as soon as reasonably possible. You need to be clear as to why and who will become the investigating officer. The appropriate person will vary depend on the nature of the matter and who is involved. The length of an investigation will depend on the complexity of the matter. Details of any investigation should be kept confidential. You may have to consider whether suspension is appropriate while the investigation takes place.
  • Decide what facts need to be established. The investigating officer will need to gather evidence to support these facts. Think who, what, where, when, why and how. Evidence can take a number of different forms; it may be emails, training records, witness statements, CCTV, or other physical evidence such as paperwork. Gather evidence as soon as possible because memories fade and evidence can be destroyed. Identify what policies and procedures surround the matter, what do these say about what is and what is not acceptable?
  • Unless your procedure states otherwise there is no need to write to an employee to tell him that he is under investigation. In many cases, there is a strong case for not announcing the investigation in advance. If he does not have time to prepare he will not have time to come up with a story to cover-up or destroy important evidence. Again, unless the procedure states otherwise there is no right to be accompanied to an investigation meeting. We also allow a companion in cases where there is a language barrier, the employee is a minor or as a reasonable adjustment for a disabled employee who would otherwise struggle to engage with the process.
  • Keep notes (we say this to clients all the time). If you are chairing an investigation meeting or meeting with witnesses, check your understanding of what is being said to you. Read the notes back to make sure you have captured it correctly and to allow the employee and other witnesses where appropriate to make correction or additions.
  • Put your findings into a report. This should be factual and supported by evidence. The role of the investigating officer is to establish the facts and decide whether there is a case to answer. There are three possible outcomes; formal action i.e. discipline, informal action i.e. guidance or mediation, or no further action. It is not the role of the investigating officer to decide on guilt or suggest a sanction.

We do agree that a structured approach to investigations is important. Below is our guide to completing an investigation.ACAS have broken an investigation down into six steps. If anything we feel that the new guide makes the process more complicated and protracted than it needs to be. It is a matter of some concern that both ACAS and the courts tend to see the discipline process in particular as a quasi-judicial activity. It is unrealistic for SMEs and places an unacceptable burden on them.

If you need some practical guidance on how to conduct a workplace investigation or any other HR queries, get in touch.

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