Internal Investigations are on the rise – How to avoid the pitfalls
16 March 2023 | Applicable law: England and Wales | 7 minute read
Academic institutions are under greater scrutiny than ever before. As a consequence, there has been marked increase in the conduct of internal investigations, caused by either an external complaint or by an institution uncovering potential wrongdoing itself.
Increased regulation, a greater focus on compliance by regulators, together with the power of all forms of media (including high-profile social media campaigns such as Everyone's Invited and #MeToo) have proved key factors.
Many of the points raised in this article apply equally to different types of education provider (whether at school, further or higher education level) but for simplicity, we'll focus on schools primarily. If you are a head teacher or the designated safeguarding lead, a number of scenarios could arise where you are required to conduct an internal investigation including parental complaints, incidents involving pupils and/or employees, or employee grievances.
This article contains an introductory best practice guide to ensure a fair and robust process is conducted.
Allegations of potential wrongdoing at the more serious end of the spectrum are likely to be complex and may require difficult decisions to be made, often at speed and under pressure. Advance preparation by way of planning, allocation of responsibilities, effective training and clear, consistent policies will ensure the school can respond appropriately to a reported incident.
2. Triage the issue
The first step will be to identify the issue that requires investigation and ensure there is an appropriate triaging system in place to determine the process and the appropriate level of support.
- You will need to check whether there is policy or procedure that applies, for example a complaints policy, safeguarding policy or student / employee disciplinary policy. Consider whether any statutory guidance applies to the particular circumstances of the matter.
- Once the correct process has been determined, consider whether the member of staff asked to investigate has the delegated power, authority and skill set to undertake the process.
- Ensure that the most appropriate members of staff or governors are involved at the outset. Consider which members of staff would be involved if the decision is disputed, appealed or the matter is escalated, including the involvement of external parties or agencies. If it's possible that a Governor-review (or similar) will be needed later in the process, it may be sensible to keep some Governors 'out of the loop', so they can review with a degree of independence from the initial exercise.
- Where the allegation is at the more serious end of the spectrum, it may be appropriate to consider engaging external support to assist with setting the scope of the investigation, the conduct of the investigation, reporting on the findings and any potential disciplinary processes that may arise in respect of employees. A blended approach of internal and external resources may ensure the necessary independence, objectivity and experience, to protect the integrity of any further process that may follow and ensure that the final decision can withstand potential future challenge.
- Consider whether there are any specific issues that may need to be accommodated, such as special educational needs or disabilities or language capabilities that require adjustments or the involvement of specialist support.
- Consider whether it is appropriate or necessary to engage with third party agencies such as local authority children’s social care, local authority designated officer for safeguarding or the police at the outset
- Address any immediate safeguarding issues that may arise. Where an allegation involves child-on-child activity, consideration should be given to what arrangements may be necessary to minimise disruption to the complainant and to the alleged perpetrator whilst the facts are established.
3. Conduct of the investigation
You must ensure that the steps taken in the conduct of an internal investigation do not compromise any subsequent processes that may follow or give rise to unintended claims such as unfair dismissal or breach of a duty of care.
It is important to prepare an investigation plan to set the scope of the investigation and identify what will be included in or excluded from the process, the resources needed, the suggested methodology for the investigator and the anticipated timeframe. Defining and documenting a clear scope of work and identifying the risk areas will ensure that appropriate action is taken and provides a useful roadmap. It should be kept under regular review as the process evolves. This will also be helpful to refer back to, in the event that the investigation is challenged as not having followed due process.
Decisions and communication, both internal and external, should be clear and documented in writing so that there is a paper trail of the decision-making process and how the matter has been handled. Notes should be kept of all meetings and conversations that relate to the investigation process. Again, these records will be crucial in the event of subsequent challenge.
a. Obtaining evidence
The investigator’s main role will be to obtain all of the relevant evidence and establish the facts so that a decision can be made. Creating a chronology may be helpful to piece together the evidence and reveal gaps in the evidence assembled or demonstrate where evidence is corroborative.
Relevant evidence may come in a number of forms including hard copy documents or electronic evidence from databases, email mailboxes, document files, mobile telephone content, online or social media content, voice recordings, CCTV etc.
In certain circumstances, the investigator will need to consider whether it is necessary and permissible to confiscate devices in order to preserve relevant evidence for potential inspection. Document preservation notices may be required, as well as practical measures to prevent relevant material being destroyed or deleted.
Inevitably in most investigations, witness evidence forms the most crucial part of the fact-finding process. It is also the stage where internal investigations are most frequently compromised; investigators must take great care when interviewing staff or witnesses. The investigator must obtain a fulsome and accurate account of what happened, and for this it is essential to have a properly structured interview, planned for in advance. Interviewers should avoid asking leading questions or multiple questions at the same time and should not introduce information that is not already known to the interviewee. Interviewers should always avoid negative behaviours such as showing anger, disgust, judgement and coercion.
It's increasingly common in schools to have to deal with a request for anonymity or confidentiality. All school investigations should be treated as confidential processes (subject to any legal or regulatory obligations to report issues). 'Confidentiality' means that the identity and facts of the allegation and investigation will be kept to a “need to know basis”.
'Anonymity' means that the identity of the complainant and / or supporting witnesses are not revealed to those participating in the process, which can include the accused. It would rarely be appropriate to withhold the identity of a complainant as this can have serious implications for the fairness of the process.
b. Documenting the findings
The investigator should prepare an investigation report summarising the evidence collated, presenting the facts and making recommendations to the decision maker. In workplace investigations, it may be appropriate to provide a copy of the report to the employee so that the employee has a chance to respond prior to a final decision being made.
Producing a report can also be a helpful step in the process in order to record the evidence considered, reasoning, reference to the relevant policies, any extenuating circumstances or mitigating factors and, of course, the final decision. Be aware that any documentation could potentially be disclosable either in future internal processes, external proceedings or in the event of a data subject access request.
c. Concluding the process
A decision letter will conclude the process and inform the affected parties of the outcome of the investigation. Depending on the process, there may be some compulsory elements to include. If others are involved, consider who else will need to be provided with a copy of the letter and/or a summary of the decision reached.
4. Follow-up action
Resulting action points may include disciplinary sanctions for pupils, staff disciplinary process if there has been a breach of the staff code of conduct, reporting to the head and/or the chair of governors, and potentially external reporting to law enforcement or regulators.
Keeping a good and careful record is key. The school’s data retention policy should indicate how long documents will need to be retained for. The requirement in the General Data Protection Regulation (GDPR) is that personal data should be kept for no longer than is necessary for the purpose(s) for which it is processed. In some instances, there are strict legal requirements regarding how long particular documents must be kept. In other instances, there are no express legal requirements and you should exercise your own judgment in determining what is necessary.
An internal investigation should obtain all of the relevant evidence and establish the facts so that an informed, reasoned decision can be made. It is essential that investigations are conducted with independence and objectivity. The process will often require a difficult balancing exercise between the interests of the complainant and any alleged perpetrator. Keep in mind that the process will be stressful for all of the parties involved; careful planning and execution will ensure a fair and robust process.
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