10 tips to undertake a fair workplace investigation

1. Terms of Reference

It is important to draft terms of reference for the investigator to ensure that that they know the remit of the investigation. It is also important (where the investigation related to a grievance) that the employee has approved the terms of references so that the investigator’s role is clear and defined.

2. The investigator

This should be someone not involved in the issues that require investigation to ensure complete impartiality and also someone who has sufficient experience and skill to undertake an investigation. The investigator should have capacity so that they can deal with investigation quickly and without unreasonable delay.

3. Consider an external investigator

Consideration should be given to the appointment of an external investigator:

• where the matter is extremely complicated, and a specific skill is required;
• to ensure impartiality and
• perhaps to ensure that the investigation is undertaken in a timely manner, if there is no internal resource available.

4. Is there a right to be accompanied?

The statutory 'right to be accompanied' means that an employee or worker can bring a companion in a grievance meeting; or a disciplinary meeting. There is no right to be accompanied to any investigation meeting. The companion is a work colleague or a trade union representative. However, check your own policy as this may include additional rights.

5. The investigation meeting

Ensure that the individual is aware of the time and place of the meeting. The investigator should emphasise the requirement to keep the content of the meeting confidential. The investigator should also advise the witness who may see the notes of the meeting once they have been approved.

6. Anonymity

A witness may request anonymity; this can be considered. First consider the reason why they require anonymity, consider whether the information can be provided without disclosing the name of the witness. If not, a balancing act needs to be undertaken to ensure fairness in the proceedings.

7. Employee fails to attend the investigation meeting

Try to rearrange the meeting or consider alternative arrangements. If the individual is still unwilling to attend or is off sick the investigator will need to look at all other evidence and make a reasonable decision. For example, getting a medical opinion on whether the employee is fit to attend the meeting (with the employee's permission); consider obtaining the information in writing. The investigator may need to carry on with the investigation without the employee.

8. Health and well being

Being subject to an investigation can be incredibly stressful. Refer the employee to an employee assistance scheme, if one is available. Appoint a mentor to the individual and ensure that this is someone who is not involved in the investigation. Keep the employee updated on the status of the investigation.

9. Investigation Report

The investigator should prepare a report setting out the findings (and any recommendations if asked to provide recommendations) and include the information relied upon including the approved statements taken as part of the investigation. When undertaking an investigation it is important not to forget about the physical evidence. For example, CCTV, emails, computer records, phone records, HR records.

10. And finally

The investigator should:

• Be impartial;
• Be fair and objective;
• Follow the terms of reference;
• Follow the organisations procedures;
• Obtain as much information as possible; and
• Ensure confidentiality.

We will be running an in-person workshop on conducting workplace investigations in our London office on 4th July 2023. If you have any questions or would like us to run a bespoke training session for your organisation or undertake an external investigation then then please do not hesitate to contact Sejal Raja on Sejal.raja@weightmans.com.