Tackling the complexities in workplace investigations

In this episode, Andy Whiteaker and Helen Goss, discuss conducting effective workplace investigations and the challenges and legal obligations for HR teams.

Join the conversation where they speak about the intricacies of handling disciplinary actions, grievances, and whistleblowing. They share personal insights from recent complex investigations, offering guidance on preserving independence and when it might be necessary to bring in external experts. 

Through the in-depth discussion, they clarify the essentials of setting clear terms of reference and maintaining confidentiality to protect all parties involved. Exploring the balance between gathering essential information and avoiding unnecessary interviews, especially when external clients or customers are in play.  

By addressing key topics of employment law, investigative procedures, and the challenges of anonymity and recording, this episode equips listeners with the tools they need to conduct effective and fair workplace investigations. 

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Chapters

• 1:03 Let's talk investigations
• 8:58 Confidentiality to protect the parties and the witnesses
• 14:32 The right to be accompanied
• 20:46 To record or not to record and how to take notes
• 23:55 Conclusion of the investigation

Transcript

Andrew Whiteaker: 0:03 

Hello and welcome to the Employment Law Pod from Boyes Turner. My name is Andy Whiteaker, I'm a Partner in the Employment team and, as ever, I'm very pleased to say that I'm joined today by my colleague and fellow partner, Helen Goss. 

Helen Goss: 0:15 

Hello everybody. 

Andrew Whiteaker: 0:17 

And, as always on the Employment Law Pod, we are going to be talking about issues or cases or things that we've seen in the press or the legal reports over the last few weeks that we think are interesting and think that maybe you might want to hear about as well. So, having said all of that, Helen, what are we going to be talking about today? 

Helen Goss: 0:37 

So, Andy, what we're going to be talking about is investigations and running investigations. I think investigations is a little underestimated skill set. 

Andrew Whiteaker: 0:47 

I entirely agree with you, and both of us in our practice, in our caseload, have had some interesting questions and queries about investigations and how best to handle them over the recent few weeks. So maybe let's start there, shall we? Shall we talk about investigations to start off. 

Helen Goss: 1:03 

Let's talk investigations. So generally we're going to find investigations relating to disciplinaries, grievances and then also whistleblowing, protected disclosure. So those are the sort of main areas where an investigation is going to be necessary. And I've been thinking, with the new sexual harassment positive obligations for businesses, that when an employee perhaps sidles up to someone in HR to make an informal complaint, I think it's going to be really difficult for businesses to not investigate. 

Andrew Whiteaker: 1:39 

Yeah, absolutely. And again, we've seen this in our practice, haven't we, where an individual says well, I just want to mark your card about this. I want you to know, but I don't want you to do anything about it, and then, of course, that puts an employer in a potentially invidious position. 

Helen Goss: 1:55 

Absolutely yeah. So, I think that they are probably going to have to investigate these situations under that positive duty in relation to sexual harassment. 

Andrew Whiteaker: 2:05 

And it need not just be about sexual harassment either. I mean, if an individual raises concerns to you about the way they're being treated, or not, just on a basis of sexual harassment, maybe there might be some more general, generic bullying, maybe issues around disability and adjustments and accommodations not being made or just poor management. Then an individual might say I don't want you to look into this, I just want you to know. But of course, what do you? Do you feel duty bound? You're like, well, I can't ignore this actually 

Helen Goss: 2:35 

Well, especially if we're going to get day one rights and restrictions in respect of terminations during probationary periods. So I think that people are going to have to investigate. So I think getting better skilled in relation to doing investigations is probably a good idea, and I think it is also true to say that the quality of investigations can vary Andy. 

Andrew Whiteaker: 3:03 

Yes, I think that's true and I think you know that there will be circumstances where, because of the particularities of the issue that's been raised or the sensitivity of issues, a decision might be made not to investigate. But if you made the decision that we are going to do this, then yeah, it's not necessarily a skill set that everyone has or that everyone's necessarily best suited to to do. 

Helen Goss: 3:34 

Well, it can win or lose a tribunal claim because the judge will look at the investigation that was carried out, because it's all part of a fair procedure. So I think it is important. So I've recently done quite a big investigation as the investigator in respect of a grievance and it I mean it was quite big, quite huge actually. So I did learn quite a lot in terms of what was important, because before I've normally been given an investigation that somebody else has done but doing it myself, quite a few things came to my mind that I thought it might be useful to share and get your view on. 

Andrew Whiteaker: 4:08 

And it was an interesting one, wasn't it? Because it wasn't about a particular action or even a series of actions. It was more about a general culture within a particular concept culture, exactly, exactly. 

Helen Goss: 4:19 

So. In that sense it it was difficult. Um. So the first point I was thinking about is who is going to be the investigator? Um, so if you're doing a discipline plenary, then it's absolutely essential that the investigator is somebody separate from the decision maker. Absolutely um important that that should be the case. Um, because otherwise you're judge, jury and hangman all in one go, and that's never going to be fair and satisfy the rules of natural justice. So when you're doing an investigation for a disciplinary, then the person who does the investigation should not also be the decision maker. 

Andrew Whiteaker: 5:05 

And, I think, think even on wider issues. So again, looking at the large investigation that you conducted recently, it can still be difficult identifying someone who is genuinely independent. 

Helen Goss: 5:14 

Yes. 

Andrew Whiteaker: 5:15 

If you're looking at a complaint about a culture within an organisation or maybe a decision that was made at an ex-co level or something like that, then clearly getting someone in at a more junior level to investigate that grievance is problematic because you have more senior decision makers who have made a particular decision on this. But then if everyone is tarnished by the decision, that may be not quite the right way of putting it, but if everyone's had an involvement in it previously. 

Helen Goss: 5:47 

It's difficult for them to then look independently and mark their own homework well, I suppose that's then when you're going to make the decision to go external, isn't it, and bring someone in who is not of your organization yeah, and we do see that quite a lot, don't we, where individuals will say, well, I want this investigated externally. 

Andrew Whiteaker: 6:06 

I suppose my thoughts on that are that, first of all, it might be that you can have someone independent internal, even if they've been broadly aware of some of the decision making, or certain aspects of it have been passed across their desk, if the complaint is about something discreet and specific that wasn't a decision that they were involved in for example, the fact that they may have known about other issues that are connected but not specifically about that point they may still be able to do it. 

Helen Goss: 6:37 

And, in fairness, most organisations use someone within to deal with investigations for disciplinaries or grievances. But particularly where there are issues of sensitivity or high confidentiality, then it may be that or even pinch points in terms of timing where people just don't have the time to deal with investigations, then bringing in an external person can be a good idea. 

Andrew Whiteaker: 7:02 

Yeah, and I understand employers' reticence to do that, sometimes because there may be a perception that whoever comes in won't necessarily get their organisation and get the people and won't have the background, knowledge or appreciation of the characters involved. Possibly Now, of course, investigations need to be fair and independent, but I can understand why employers sometimes feel that they would prefer to keep it in-house with someone who, as I said, has that cultural feel, rather than someone who's parachuted in. 

Helen Goss: 7:32 

Well, there is the cost aspect as well, but just coming back to who is the investigator with a grievance, it is slightly different, isn't it? 

Helen Goss: 7:43 

Because the person who carries out the investigation can also be the decision maker in respect of the the grievance, unless, of course, the grievance manager has delegated the investigation, which, again, is is perfectly reasonable. 

Helen Goss: 7:57 

So I think that the takeaway from that is, if you're doing a disciplinary, then you must have a separate investigator to decision-maker. The next point is to be, if you are the investigator, to just be clear about what it is you are investigating, so get very clear instructions from whoever it is who is asking you to do the investigation. So scope it properly so you essentially know what, how, when, who is involved, who are asking you to do the investigation. So scope it properly so you essentially know what, how, when, who is involved, who are you going to be speaking to, what exactly it is that you are doing and I know that sounds a bit of an obvious point really, but I think it's really important that everybody is clear, from those instructing you to you who is carrying out the investigation, and the people that you involve in the investigation understand exactly what it is that you're doing. 

Andrew Whiteaker: 8:52 

Yeah, that terms of reference, Exactly yeah. 

Helen Goss: 8:55 

Exactly. 

Helen Goss: 8:58 

But of course, that then ties into my next point, which is confidentiality to protect the parties and the witnesses at that investigation stage, because obviously, at that point you are doing an investigation and it may be that, as a result of the investigation, that there is no further action and that the whole thing goes away. 

Helen Goss: 9:19 

Now, that may not be the case, but it's really, really important. So, in so much as you're able to, to maintain a level of confidentiality and to explain to everybody that you talk to that this is a confidential process. You shouldn't discuss it with anybody. If there is anything that you do need to discuss, you should refer to so-and-so and give a name that they can talk to, because sometimes being a witness can be quite a distressing experience. So it is important that they do have someone that they can talk to, but someone perhaps in HR or their manager, who understands what the process is that they're going through, going through. So, in terms of the investigation, I think it's really important that you make sure that you get all the relevant information, because we do get quite a lot with gaps, don't we? 

Andrew Whiteaker: 10:14 

We do. But the flip of that as well is that sometimes and I've had it again recently in cases that I've been involved with where an individual who is pursuing a grievance or has made a complaint about something has said or maybe even is facing a disciplinary, and they'll say, well, I want you to go and speak to all of these people. And you look at it and you say, okay, so why do you want me to go and speak to all of these people? Oh well, because they'll tell you what a cracking person I am, or whatever it might be, and a character reference a character reference and you think well, okay, that's you. 

Andrew Whiteaker: 10:47 

You might be a wonderful individual, but that's not necessarily the issue that we're looking at here so it might be, it might be rare, I would say it's that challenge of um, both legally, ensuring that you've done as much investigation as is, as is appropriate and necessary, but also on a more sort of human level, ensuring that the individual feels heard and that they feel like they have had an opportunity to, to, to say their, to say what they want to say and have others support them in what they're saying, while at the same time, not spending hours and hours speaking to people who are not providing any information. That's actually progressing. 

Helen Goss: 11:27 

The uh the investigation forward exactly because very often in a, in a grievance, for example, you get a long list that the individual has set out of about 20 people that they think you need to speak to, so it is. You do need to go through that list and work out really who can add to this investigation. 

Andrew Whiteaker: 11:45 

Yeah, and a good example of it might be someone saying, well, I've been bullied by my boss and my boss said these horrible things to me, and then, following those meetings, I've confided in so and so and so and so you think, well, I'm sure you have confided in so and so and so and so, but of course they can't necessarily give any evidence about what your, what your boss did because they weren't there, they know what you said, happened that, but they don't know what actually happened now. 

Helen Goss: 12:10 

One of the um issues around this, Andy, is where people want you to speak to clients yes or customers or external folk, and that is really problematic, isn't it? Because my natural instinct, I mean I'm thinking, if, if this was happening here, I would not want anybody to be speaking to clients, um, about what was going on, and I can't ever think of a situation where a business has been keen to involve a client or a customer in an internal situation. 

Andrew Whiteaker: 12:46 

No one wants to wash their dirty linen in public. 

Helen Goss: 12:48 

No, no. So generally I would say that we don't have to speak to clients. Sometimes clients have raised issues themselves, in which case that's fine, you can ask them. But other than in exceptional circumstances, I would say that probably best not to involve clients, and that's not necessarily a legal perspective. That's more about your own reputational situation, isn't it? 

Andrew Whiteaker: 13:19 

Yeah, I mean, sometimes they might have access to information that you don't have and that you might need to ask them in order to recover that and to make findings of fact. But I agree with you on a, on a point of principle. You, you just don't want to do it unless you absolutely have to. 

Helen Goss: 13:35 

No, no. And then, in terms of preparation, make sure you've got all the relevant policies, the documents. I personally think you need to actually prepare some questions and I know you you think I over prepare sometimes but it is important to make sure you know what it is you're going to be asking I can't believe you said that and the other thing is that sometimes you, somebody will, um, tell you something in an investigation that you think, oh okay, well, I need to now go and look at that as well. 

Helen Goss: 14:08 

So you do have to sort of move with what information is given to you and enlarge the investigation on occasion. 

Andrew Whiteaker: 14:20 

Yeah, we spoke about that importance of the terms of reference document that you might produce. But you can't be too dogmatic about it, can you? And there, if some flexibility and fleet of being fleet of foot is sometimes required, um, if you know certain comments or evidence or whatever it might be, sets you off in a different direction. 

Helen Goss: 14:32 

Yeah, no, exactly. So the next point is the right to be accompanied, and I think people, um businesses, do get a little bit confused in relation to that because from a legal perspective there is no right to be accompanied to an investigation meeting, but ACAS does say that it's best practice to allow the right to be accompanied being accompanied. 

Andrew Whiteaker: 15:00 

Yeah, and I have these conversations with clients all the time, especially when an individual who maybe there has been an investigation, that's then resulted in disciplinary processes being conducted and they say, well, it's outrageous. It's outrageous that I wasn't given the opportunity to have someone with me in that original meeting and, what's more, I wasn't properly invited either. I didn't know what this meeting was going to be about. 

Helen Goss: 15:20 

Well, that's the point, though, isn't it Generally? 

Andrew Whiteaker: 15:27 

Well, exactly, exactly, yes, exactly that. But if you say to someone, by the way, we're carrying out an investigation into all of these things, these allegations to be made, could you come and see us in a week so we have a chance to speak to them, you about it, then that potentially affords an opportunity for individuals to cover tracks or to come up with a cover story or whatever it might be. So, getting that original unvarnished, unwarned, um response is there's often a high value to an investigator. 

Helen Goss: 15:42 

Yeah, exactly so I think you're just going to have to look at it on a case by case. Some businesses will, as almost as a matter of policy, offer the right to be accompanied. Um well, that's fine if they do, there will be some circumstances where someone perhaps is unwell, or vulnerable for whatever other reason. 

Helen Goss: 16:08 

Yeah, and it may be very sensible then to offer them um, but from a legal perspective it's not generally um required, although just thinking about it, with um, a grievance, for example. So if your grievance meeting is essentially that investigation meeting, then they should have the right to be accompanied. So it's, it's be clear about what is this? Is this meeting. Now then something that can get a bit cloudy is what you say. You are investigating when you invite someone to an investigation meeting. So I've had in the past situations where the whole grievance has been handed over to unpleasant circumstances. 

Helen Goss: 16:55 

I would say that has not gone well and it's definitely not something that I would recommend that you just hand the grievance over to the person who is alleged to be the perpetrator of whatever behaviours are being complained of. 

Andrew Whiteaker: 17:12 

Yeah, and grievances or complaints are often couched in very emotive language and can be quite accusatory by the very nature. And it's not the fact that you don't want to put the allegations to the individual, but you need to think about how best to do that, and simply providing an unvarnished grievance document or letter or email or something like that may cause much more harm than good. 

Helen Goss: 17:38 

Yes, and just even as an aside on that, if that is what you were going to do, because you had a very specific reason for doing so, you would have to get the consent of the individual who wrote the letter to do that. 

Helen Goss: 17:52 

My advice is that you do a general summary of what the grievance is about and, in respect of pure witnesses, then you just summarise the particular incident or situation that you believe they can help you with. Yeah, so that is definitely the better way to deal with it. People or witnesses who want to be anonymous. Now, that is a major headache, isn't it? 

Andrew Whiteaker: 18:20 

Yeah, absolutely. 

Helen Goss: 18:21 

And I do understand, because you know people can be scared of getting involved because they're concerned about the abuse or the effect on their career in terms of retaliation or retribution for having potentially said things that could be negative for a boss or a fellow colleague. But it is challenging for someone who says that they want to help but they want to be anonymous. So there are circumstances where that can be done, but mostly when you're talking about, perhaps, an incident that's occurred, well then everybody knows who was there. So how, then, can you protect the anonymity of a, of a particular witness? 

Andrew Whiteaker: 19:05 

when, as far as anonymity is concerned, um, sometimes you can get around it where maybe you have three or four people who all saw the same thing or experience the same thing, and then you can maybe rely upon an individual who says well, no, I can corroborate that that that did happen. I definitely saw that happen. But you don't necessarily then have to rely upon them as a key witness as it were, or as a named person. 

Helen Goss: 19:29 

Yeah, you could say that two people have corroborated yes, so you can potentially do that. 

Andrew Whiteaker: 19:35 

But when it's just a sole individual who's giving that particular evidence on that particular point, it's very difficult to allow that to be, done anonymously. 

Helen Goss: 19:45 

And that's really a matter of just sitting down and trying to give comfort to the individual that they are going to be protected come what may, and that, as an employee, then I don't know, is it too much to say it's their duty to help you with that investigation. I mean, I've sometimes had employers say well, if they don't, if they don't help, we're going to discipline them yeah, which is not a particularly helpful approach to take, but you can understand the frustration of the business but it's, it's. 

Andrew Whiteaker: 20:20 

I suppose what you need to be doing is relying upon the, the argument that, yeah, if allegations have been made about misconduct or inappropriate behaviour or bullying or whatever it might be, then the only way this is going to be addressed is if we invest in it and we deal with it, and so if people are unwilling to put their head above the parapet and you know corroborate allegations that have been made, then things won't change, no, exactly. 

Helen Goss: 20:46 

Then my next point is a is a really challenging one, Andy to record or not to record and how to take notes, because this can cause no end of problems, can't it? So if you're going to record the interview, then obviously you need to get the consent of everybody who is going to be on that recording, and also you need to know that you're going to have to get a transcript of it um, if you don't record, I think you still have to assume that the other person will record it I wouldn't. 

Helen Goss: 21:21 

I wouldn't go as far as to say they will, but maybe they might no, assume that they, that they will, because whether it's, um, if, if it's a remote meeting, they'll just record it on their mobile if they're in the room. We have lots of cases, don't we, where people have recorded on their mobile which was in their handbag, and there are there are cases in in the tribunal where people have left recordings on when they've gone out the room to listen to discussions, when they've not been in the room, etc. Um, so just be aware that more often than not, what happens in that meeting is going to be recorded. Um, the best case, I think, is to have a note taker, but in some circumstances that's a little bit of a luxury yeah, but I think, um, I think having someone. 

Andrew Whiteaker: 22:13 

My personal view is that having someone who can sit there and just concentrate on taking in the note is really important because if you, if you're asking the question, and trying you can't because you're trying to think of the next question, you're trying to listen, you're trying to pick out the bits that are important and then you're also trying to make a note of it at the same time. Really difficult. So having that that that third party there to sit and take a note is super important it. 

Helen Goss: 22:37 

It's really, really helpful and whatever. In terms of the notes, I think that when you send them out to be agreed, then you make it clear whether it's a general summary of what was discussed or verbatim, because a lot of people will say that a general summary is not accurate, etc. Etc. But if you are there trying to do it yourself as well as do the questioning, then a general summary is really all that you're going to be able to do. 

Andrew Whiteaker: 23:06 

Yeah and I say this advisedly because I know this is not universally the case but yeah, I will often see complaints about notes and someone saying, well, I didn't say it quite like that and that's not quite what I meant. But it's very rare that that's ever anything material. 

Helen Goss: 23:23 

Well, this is what I was going to say, actually, because trying to agree it can be very tiresome, can't it? And combative, to be honest. So I generally say, well, if you really can't agree and there are important differences, I would just say that there are two sets of notes because, ultimately, if you can't agree, you can't agree, so you will just have to make a decision as to which set of notes you've decided to go with. 

Andrew Whiteaker: 23:51 

Yeah, and it's very rare that they're set up and proceed on that basis. 

Helen Goss: 23:54 

Yeah, no exactly, then the sort of last point in relation to this is around the conclusion of the investigation, and really you need to go back to your brief, to your terms of reference, so that you remember again what it is that you are supposed to be doing. So if it's a disciplinary, really the only finding that you're going to make in a disciplinary is is there a case to answer? That is the only finding. Yes, so you will record all the facts, what you found out, who said this, who said that, etc. But you are not making findings as to who you believed and who you didn't believe. 

Helen Goss: 24:39 

Believe, because that's the job of the disciplining manager yes the only thing that you, as an investigator, needs to decide is whether there is a case to answer, in which case the matter should proceed to disciplinary, or not, in which case it won't. 

Andrew Whiteaker: 24:56 

I would add um about findings, and I apologize if I'm stealing your thunder a little bit here. I haven't read your notes so I don't know if you're going to mention this, but one of the things that I see a lot about decisions are where if a decision is not upheld, it's not necessarily well. It's almost always not because the employer is concluding, or the investigator is concluding, that the individual has lied or is making it up. It's just that there's not sufficient evidence to uphold that, and how you communicate that to the individual is very important. I see the words gaslighting and things like that thrown around so frequently very emotive I know what happened to me. 

Andrew Whiteaker: 25:37 

I know this happened and you're now making it out as if I made it all up and I'm some sort of fantasist, and that's invariably not actually what the grievance investigator or the investigator is concluding. They're just saying well, look, I'm not saying this didn't happen, it's just I can't find the evidence to support. 

Helen Goss: 25:55 

No absolutely, um, I quite agree. So, as I say, when you're dealing with a disciplinary, do not make all sorts of findings, because that is not your job as the investigator. That is the job of the disciplining manager In a grievance. If the investigator is also the grievance manager, then that's a very different scenario. So you know it is more acceptable, obviously, because that's what you're being asked to do. So those are my main points, Andy, and just to say that we do do quite a lot of investigations, whether that's lawyers in the team or we have an HR consultancy where we have some really experienced HR professionals who very often step in for our clients to do those investigations for them. So it's often where it's very serious allegations or where they're very complex, where they're very sensitive or very confidential or just where they need the eye of someone external who is more independent than anybody within the organisation could be. 

Andrew Whiteaker: 26:59 

Yeah, absolutely, and they may feel they just don't have the skill sets internally as well. As you said, it could be a resourcing issue, could be a whole host of reasons. But yeah there's often a very good justification for bringing someone externally. 

Helen Goss: 27:11 

Yeah, but we can help if you feel that you're in that situation. 

Andrew Whiteaker: 27:15 

Okay, well, I think that probably just about wraps us up for today. All that remains is to thank you for your time, Helen, and a really interesting chat, as always. 

Helen Goss: 27:23 

Thank you, Andy. 

Andrew Whiteaker: 27:24 

And also to thank all of you for listening to the Employment Law Pod. If you're interested in checking out any more episodes in this series, then you can find them at the Boyes Turner website, and you can also follow or subscribe wherever you listen to your podcasts. Goodbye. 

Helen Goss: 27:40 

Thanks everyone.