12 December 2019 - Article
It always starts the same way. The manager strolls over and asks: ‘have you got a minute? I just want to check something with you’. From this quick conversation, things then often snowball into lengthy meetings with HR, internal and external lawyers, at which the individual is shown documents, often incomplete and some of which may date back years. The employee is rarely given context or told what other witnesses have said. The aim is to ensure the employee has not over-prepared. Off the cuff comments made at the outset are difficult for the accused employee to correct later, and negative inferences may be read into blanket refusals to comment.
We live in the era of the investigation. These can take a whole variety of forms. They might be run in-house by HR, the Company Secretary or the General Counsel. They might be outsourced to the employer’s own lawyers or accountants or to an entirely independent law firm, HR specialist or investigation agency. Outsourcing to the employer’s own lawyers may mean that the employer retains legal professional privilege in the outcome of the investigation. Sometimes the investigation is taken out of the employer’s hands by an external regulator or the police. The regulator may also require the employer to investigate and then turn over its findings to the regulator.
At its best an investigation is a genuine attempt to establish the truth. But sometimes investigations become political. They might be a carried out reluctantly but with the intention of protecting a senior person, or as a convenient way of removing a troublesome employee. A botched investigation reflects badly on everyone. Before starting an investigation, it is worth reading the ACAS guidance on conducting investigations whilst remembering that it is only guidance and more may be expected of an employer.
We have a clear view on how any investigation should be run. Whether you are running an investigation, or find yourself subject to one, there are some key questions you should ask to make sure best practice is being followed.
1. are you clear on whether the investigation is independent?
2. will the employer retain legal privilege in the outcome of this investigation?
3. is it being clearly communicated whether the individual under the spotlight is going to be suspended while the investigation is carried out?
4. are there properly drawn up terms of reference?
5. are the terms being shared with the individual being investigated as well as the people making the allegations?
6. is the process being run by an experienced investigator? It’s important this is someone who knows how to collect, probe and evaluate evidence and to interview witnesses.
7. is a reliable note taker being involved to ensure all information is captured accurately and objectively?
8. are the notes from all meetings being agreed and checked with interviewees?
9. is there a clear time table for the investigation? And an update if it needs to be extended? There should also be clear communications to third parties about what is happening.
10. Is there appropriate support for the accused and the accuser? Both are often in a lonely place during the investigation and it can be very stressful. If an employee’s career is on the line, their rights can be extensive.