INDEPENDENT WORKPLACE INVESTIGATIONS

When the investigation needs experience, judgement and genuine independence

Most disciplinary investigations do not fail because the investigator deliberately sets out to conduct a poor investigation.

They fail because the investigation itself was never properly constructed.

The scope may not have been properly identified. The investigation may not have been planned. Relevant facts may not have been properly evidenced. Evidence may have been accepted rather than sufficiently challenged. Assumptions may have replaced findings properly drawn from the evidence. Or conclusions may have been reached before the investigation had genuinely ended.

In particularly difficult cases there can be another problem: genuine independence.

Where allegations concern a senior or powerful employee, finding somebody internally who has the experience, authority and independence to investigate properly can be difficult. An internal investigator may also face pressures which have little to do with the merits of the case, including unrealistic timescales, difficulties obtaining evidence or witnesses, or concern about the consequences of reaching the "wrong" conclusion.

That is where an experienced independent investigator can be particularly valuable.

When should an employer consider an independent investigator?

Not every workplace investigation needs to be conducted externally.

But an independent investigator may be appropriate where the allegations are particularly serious or complex; the employee concerned is senior or influential; the allegations involve senior management, HR or members of the Board; there are concerns about actual or perceived bias; or nobody internally has sufficient experience or independence to undertake the investigation.

External investigation may also be appropriate where dismissal is a possible eventual outcome and Employment Tribunal proceedings are a realistic risk.

The purpose should not simply be to give an internal process the appearance of independence. The investigator must actually be independent and prepared to reach conclusions which the evidence supports, whether or not those conclusions are convenient for the organisation.

My approach to workplace investigations

A good investigation starts by identifying clearly what is actually being investigated.

That means establishing the allegations or issues, determining an appropriate scope and identifying the evidence reasonably required to establish the relevant facts.

Documents need to be considered. Relevant witnesses need to be interviewed. Accounts may need to be tested against documents and against each other. Evidence supporting an allegation must be considered alongside evidence which does not.

The object is not to build a case for dismissal, nor to build a case for the employee.

It is to establish the relevant facts as fairly and objectively as possible.

Evidence should be weighed rather than merely collected. An impressive volume of documentation does not necessarily make an investigation a good one. The important question is what the evidence actually establishes.

Equally importantly, the investigation must remain an investigation. The investigator should not confuse establishing the facts with making the disciplinary decision which may subsequently follow.

Senior and sensitive investigations

The more senior the employee, the more difficult some of these issues can become.

Power relationships matter.

A relatively junior internal investigator may technically be independent of a senior executive but nevertheless find it extremely difficult to challenge that person's evidence robustly. Senior managers may themselves have views about the outcome they expect.

In those circumstances, independence is not simply a name on an organisation chart.

It requires an investigator with sufficient professional experience and confidence to follow the evidence wherever it leads.

The investigation report

The final report should enable the organisation to understand what was investigated, what evidence was obtained, where material evidence conflicts, what findings can reasonably be made and what cannot properly be established.

The report should distinguish evidence, findings and assumptions.

Its purpose is to provide a sound evidential foundation upon which the appropriate person within the organisation can subsequently make decisions.

Why the quality of the investigation matters

Employment Tribunals do not expect perfect investigations. They expect reasonable ones.

A poorly conducted investigation has always been capable of contributing to, or resulting in, an unfair dismissal. Whether defects are ultimately fatal will depend upon their nature and seriousness and what happens during any subsequent disciplinary process.

There is therefore a considerable difference between having conducted an investigation and having conducted a reasonable investigation capable of supporting the decisions which may follow it.

Experience and judgement

I am a law graduate and Chartered Fellow of the CIPD, with previous senior HR management experience and many years' experience advising organisations on disciplinary, dismissal and difficult employment relations matters.

I undertake independent workplace investigations where an organisation needs an experienced external practitioner who can examine the evidence objectively, challenge it where necessary and produce a clear and reasoned report.

For complex, sensitive or senior-level workplace investigations, the quality and independence of the investigator can matter as much as the investigation procedure itself.