Yorkshire Cricket Club was in the news last month, criticised for their investigation into historical allegations of racism.

So, what makes a good or bad workplace investigation?

In this Q&A, Employment Solicitor Chris Dobbs of Frettens Solicitors answers your questions on workplace investigations.

Are workplace investigations required by law?

There is no statutory obligation to undertake an investigation into either a grievance or a disciplinary allegation. However:

1. In an unfair dismissal case, the Tribunal will expect an employer to have acted reasonably in all steps it took up to dismissal. Not having an investigation may count against an employer in this test.
2. Similarly, not having conducted a thorough investigation into alleged discrimination may put an employer in difficulty. It may be presented as a further discriminatory act or the employer may limit their own potential defences to the claim.

When is a workplace investigation ‘necessary’?

When an incident arises, an employer should first decide whether they will actually be taking formal action.

Whether a grievance or a potential discipline issue, many workplace matters can be resolved without relying on formal procedures and can often be managed through informal steps, mediation or effective general management.

An investigation will only usually follow where it is decided that formal action is required. It may be that an investigation is:

• Required by internal policy or procedure, in which case not doing so may give an employee a breach of contract claim;
• Appropriate because the incident warrants further investigation to help a potential decision-maker;
• Helpful in determining whether there is in fact a case to answer such as where alleged misconduct is only suspected or had maybe been reported by a third party

What makes a good workplace investigation?

Investigations should be treated as a fact-finding exercise. They are not a witch hunt or an opportunity to ‘prove’ any particular allegations.

A good investigation will present any evidence obtained impartially but in a manner which allows for an informed decision by the employer.

Whoever carries out the investigation is not there to prove the case, but to look for evidence which both supports and opposes the issue at hand.

Below are some tips to ensuring a good workplace investigation:

• Know what is being investigated
• The right investigator – someone who is:
  • Outside of the situation
  • Well respected
  • Potentially has knowledge of the business
• Confidentiality and sensitivity are considered
  • A breach of confidentiality may be an act of misconduct

What evidence should be used in a workplace investigation?

It may be appropriate to consider other forms of physical or documentary evidence as part of an investigation.

Anything used should be obtained lawfully and in a manner which is not in breach of the employee’s contract of employment.

The investigator should keep a record of what evidence is obtained, how and on what basis it was obtained and what it evidences.

More private intrusions, such as the use of CCTV evidence or information obtained from a search of an employee’s possessions (including their desk, for example) should be referred to in policies.

Any such search should be documented and allowed for under workplace policies.

What should be included in a workplace investigation report?

The outcome of an investigation should be some form of report back to the ultimate decision-maker which summarises the evidence and reaches a recommendation as to whether there is evidence to proceed with disciplinary action or not.

Realistically, the recommendation may be:

• To proceed with formal steps
• To proceed with informal steps
• Or that no further action is recommended.

The investigation report should not conclude as to guilt or otherwise as this may indicate predetermination on the part of the business as a whole.

It can be useful to summarise agreed facts, contested facts and claims which are not evidenced or may be unsubstantiated as this will help the decision-maker with planning.

Specialist Employment Solicitors

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