Undertaking An Investigation

This summary is based on Judicium’s HR Top Tips: Undertaking an Investigation ‘Sofa Session’ from the 22nd of September, with our Resident expert Emily Like LLB (Hons), LPC.

 This session was centred around top tips for commencing an investigation, how to handle tricky issues, and most importantly managing the aftermath of an investigation.

Commencing An Investigation  

Tip 1. Read your policy.

Although this may sound basic, it is an essential step to ensure you don’t hit any bumps down the road. Policies vary from school to school.

For instance, the policy may state that employees have a right to be accompanied at an investigation or it may require a certain number of days’ notice of an investigation meeting, etc. It is important you are aware of your school’s specific policy before you commence an investigation.

• The policy should be compliant with ACAS Code of Practice for Disciplinary and Grievance Procedures so it is important you are familiar with the code as well.

• Key points in relation to investigations are:

1. 1. Deal with issues properly
   2. Act consistently
   3. Carry out any necessary investigations to establish facts

• Failure to comply with ACAS Code does not give an employee grounds for a tribunal claim. However, compliance to the Code can be relevant to compensation. Following a successful Employment Tribunal claim, the Judge has the ability to increase any compensation up to 25% if the employer has failed to follow the Code.

• If no disciplinary/grievance policy is in place, a school does not need to introduce one. Instead, following a best practice approach in line with ACAS Code is acceptable.

Tip 2. Be independent and impartial.

• As IO, you should be independent with no prior involvement in the grievance (e.g. you should not be a witness to any of the matters being investigated). In the beginning it is important for schools to consider who is best placed to take these positions and set aside staff/Governors to undertake these key roles:

1. 1. An investigator who will take an in-depth look at the facts of the case (IO)
   2. Hearing Officer/Panel – The decision-maker(s)
   3. An appeal manager if the employee wishes to appeal the decision, which will often involve a panel of three Governors

• In accordance with ACAS Code of Practice, in disciplinary matters, different people should carry out the investigation from those in the subsequent disciplinary hearing. For grievance matters schools often separate the IO from the person holding the grievance hearing.

• Most importantly, the IO must approach the investigation with an open mind. Preconceived notions shine through the questions asked when speaking to witnesses and any final report produced.

Tip 3. Know the scope of the investigation.

 What are you actually investigating?

 What are the clear concerns you need to look into?

 For grievances, read the letter or email raising the grievance carefully. Follow-up by speaking with the employee for further details to agree a remit for investigation.

 For disciplinaries, agree the scope with the person who appointed you IO. They may even be your first witness.

Tip 4. Be prepared.

• Create a plan: Detail the concerns to be investigated, what documents you might need to review and who you may need to speak to. Update the plan as you go along.

• Prepare questions in advance but adjust during the meeting when appropriate, as the meeting should flow as a dialogue. Remember to pause and think about witness responses in case you need any more information before moving on.

• Ensure you interview witnesses in the right order.

• • Grievance: Interview employee who raised the grievance first to get a full understanding of their concerns and what outcome they are looking for.
  •  Disciplinary – Employee under investigation interviewed last so you can put your gathered facts to them for comment.

Tip 5. Be detailed.

• Gather all the facts and speak to all relevant witnesses for balanced evidence.

• 5 W’s: Who, What, Why, Where, When

• Don’t be afraid to go back to a witness to ask for further information.

• In the investigation meetings, ask employee for witnesses and documents to support their evidence.

• A detailed investigation is important because:

• • If an employee is dismissed following a disciplinary process and pursues a Unfair Dismissal claim (UFD), the Tribunal will look at whether the investigation was reasonable.
  • The IO is a key witness in an UFD claim.
  • In a grievance, an employee may be able to pursue a Constructive UFD claim if they feel it was investigated poorly.

 Tip 6. Manage expectations.

• Employees should be given a reasonable time frame when to expect to hear the outcome.

• Keeping an employee waiting weeks or months without an update may add to frustration and may lead to further grievances, sickness/absence or a claim.

• Investigations are stressful and managing expectations helps support the mental health and wellbeing of the employee.

• From the beginning the employee should be told:

• • Why you are carrying out the investigation
  • Who will be carrying it out
  •  What you are going to do
  • You will need to talk to witnesses
  • How long the investigation will take
  • Next steps

Tricky Issues

1. Confidentiality

This tends to be a big issue in schools due to the close-knit nature of school communities. It is vitally important that matters under investigation remain confidential or else a fair investigation may be compromised. Therefore, confidentiality should be emphasised throughout the process, especially during investigation meetings. A breach in confidentiality could become a disciplinary matter.

2. Reluctant witnesses/those that wish to remain anonymous

 It is important to find out why witnesses are reluctant to provide a statement in order to attempt to resolve the issue. Walking through the investigation process, explaining how the evidence is used, reminding about confidentiality and reassuring them that they have the school’s support and protection may help.

They can also be reminded of the obligation of good faith owed to the employer.

 ACAS’s guidance states that anonymous witness statements should only be taken in exceptional circumstances. You must also consider proceeding without their evidence.

3. Sickness absence

It is common for employees to be signed off sick, often with anxiety or stress during a disciplinary/grievance process. You can consider other options such as holding meetings offsite or online. Alternatively, you can obtain written representations or statements instead.

You may also consider a referral to Occupational Health to see if the employee is well enough to attend.

Ultimately, you may have to consider proceeding with the investigation in the employee’s absence.

4. Grievances about the process

If an employee raises a grievance during a disciplinary procedure, ACAS Code states the process may be temporarily suspended to deal with the grievance.

However, if the cases are related, it may be better to deal with both issues concurrently. ACAS Code allows for both options, leaving it up to the school’s discretion.

If no action is taken to investigate the grievance, it will be seen as a breach of the Code and taken into account when assessing compensation.

Unless the grievance throws doubt onto whether the disciplinary process can be conducted fairly, the school can inform the employee that the substance of the grievance will be discussed in the context of the hearing. Once the process is completed, the school can deal with any outstanding grievances.

Managing The End of An Investigation

1. Write the report

 You should go through each concern and:

• Confirm the evidence considered
• Summarise
• Make a recommendation on next steps

The evidence considered should form appendices to the report (e.g. notes from the investigation meetings).

The report should summarise the facts in the case – not opinions.

The IO role is to make recommendations not judgements.

• For a grievance: the main recommendation is whether or not to uphold the concern, but you can also make recommendations on:

1. 1. How to resolve concerns
   2. Training or coaching for those involved
   3. Counselling
   4. Mediation
   5. Changes to school’s policy or procedure
   6. Disciplinary process

• For a disciplinary: If there is a case to answer to, recommend to proceed with a disciplinary hearing. If not, you may recommend informal management guidance is given instead.

Be prepared to present your report and answer any questions at any resulting hearing.

The investigation report is then passed to the decision-maker.

Helpful links to resources:

 ACAS Code - https://www.acas.org.uk/acas-code-of-practice-for-disciplinary-and-grievance-procedures/html

If you require any support in any of these steps or would like to talk to someone surrounding some support for your school, please do not hesitate to call us on 0203 326 9174 or email tara.jones@judicium.com.

You can also find details regarding Judicium's HR Advisory service here.

If you’d like to review Judicium’s forthcoming sofa sessions for the term, please click here