Related Sector: Investigations
Every company, large or small should have an adequate employee investigations process in place as unfortunately whilst being extremely time-consuming and potentially expensive, employee investigations are not uncommon, and if carried out without following a fair and reasonable process, could lead to claims for wrongful dismissal, unfair dismissal or even discrimination.
We’ve put together some of our top tips for organisations and their HR professionals who will often find themselves having to investigate a potentially complex and contentious matter between employees.
But first, let’s outline exactly what an employee investigation is.
What is an employee investigation?
For something that is so essential and commonplace, there is no technical definition of an employee investigation in UK employment law – there is no required length, no rules regarding evidence gathering and no rules regarding conducting interviews.
But taking it in its most basic form, an employee investigation is a systematic process by which an employer develops an understanding of the facts relevant to current or past behaviour(s) of its employees and comes to a decision based on an analysis of these facts.
Whilst there is no legal definition, under employment law, the relevant burden of proof is on the balance of probabilities (otherwise known as a 51% more likely standard). This may seem like a low bar, but it’s crucial to note that the belief must not just be genuinely held but also reasonable. Reasonableness is probably the most significant word in an investigation, as not only is an employee’s credibility, reputation and livelihood at stake but an organisation’s reputation too, if a claim is subsequently raised against it.
What are our top tips in conducting a reasonable employee investigation?
It’s important to note that investigations are extremely complex, and no facts will ever be the same, however, we’ve outlined five key steps that you can follow to ensure that your investigation runs as smoothly as possible for all parties involved.
Tip #1: Set a timeframe. One of the most common complaints of those involved in an investigation is timing. Investigations have been known to drag on for over six months, which is not only extremely stressful but during that time, parties subject to the investigation might still have to work together, which is not ideal for the employer either. But setting out a timeframe for the investigation will ensure that all parties know what to expect and can manage themselves and their professional duties accordingly. This timeframe should be reviewed on a regular basis and all parties should be kept informed and updated of any changes.
Tip #2: Map out your investigation. A complaint will rarely be simple and related to one specific incident. In fact, many investigations will start with a long list of allegations that have taken place over months or even years. As mentioned above, you are under no obligation to investigate (and gather evidence for) all of them but even so, it is likely to be quite overwhelming seeing every allegation set out on a page. Mapping out the allegations on a blank piece of paper may help you visualise all the avenues you need to explore and how you’re going to go about exploring them, as well as understanding the crux of the complaint and what it is really about.
Tip #3: Choose your Investigator carefully. Some organisations may choose to appoint an external investigator as they will be a neutral party with specific expertise relating to the investigation at hand, however this option is not available to everyone. Choosing an internal investigator is difficult because they will be an employee in the business (most likely an HR professional) with other day to day responsibilities. If possible, choose someone who does not work directly with any of the parties involved in the investigation, and ensure that they are comfortable and have the requisite skillset/knowledge to undertake this role. This can be done be enrolling them on a professional training course, which is far less costly than hiring an external investigator.
Tip #4: Don’t be afraid to challenge evidence. If something doesn’t add up, don’t just ignore it and hope it will go away, challenge it and be persistent, even if it means investing more of your time and resources in gathering evidence - it will pay off in the long run!
Tip #5: Keep a record. And finally, arguably the most crucial piece step in a whole investigation, don’t assume that the investigation will be the end of the matter because in some cases, the matter (and your investigation) may end up being the subject of an Employment Tribunal claim. It is important, therefore that you retain prudent and comprehensive records to show that the investigation was fair, sufficiently thorough and reasonable.
So, there we have it, our five key steps for conducting an employee investigation. If you would like more formal training, visit this page to view and sign up to our practical and comprehensive employment investigations course.
Author: Meera Shah, Content Manager
Date first published: 5 April 2022
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