Workplace Investigations: Advice for employers and HR professionals

Every organisation will inevitably encounter incidents or issues that need careful and fair management. A workplace investigation is often required before any decisions can be made.

But when should you conduct an investigation? What are the benefits? And what does an investigator do?

In his first article for the firm, Nathan Andrews, Head of HR Services, sketches out everything you need to know before taking on a workplace investigation.

When should you do a workplace investigation?

We advise that employers should always first seek to investigate any matters that could require formal action to address and resolve issues. This is particularly relevant in situations involving disciplinary or grievance matters, which could include:

• Complaints about bullying, harassment, discrimination, or alleged breaches of health and safety regulations.
• Allegations of misconduct or concerns regarding capability.

It is often beneficial to consider whether issues can be dealt with informally in the first instance, allowing for resolution within a reasonable time frame without the need for undue processes.

However, there is no 'one-size-fits-all' answer to this question. If you are uncertain about how to handle a particular matter in your workplace and whether it should be investigated, we would recommend speaking to an Employment & HR professional.

Related: Discrimination and Equality - Unlawful Conduct

Do you have to do an investigation before a disciplinary?

If an employee breaches a disciplinary rule or their performance persistently falls short of what is reasonably expected in their job role, you must decide whether to handle the matter informally or to undertake formal disciplinary procedures.

The disciplinary procedure should be followed in all cases (unless there are exceptional circumstances) as, even if the procedure is non-contractual, failing to follow it may lead to possible financial implications and/or a complaint of unfair dismissal arising.

To act reasonably, and comply with the ACAS Code of Practice, employers should gather appropriate evidence through a thorough, fair investigation before taking further action.

Related: Performance & Capability: Everything employers need to know

What does a workplace investigator do?

After fairly and objectively establishing the facts of a case, a trained and qualified workplace investigator will reach a conclusion as to what did or did not happen based on the evidence gathered.

A skilled investigator will actively seek evidence that both supports and contradicts the allegations made.

The investigator's role is not to prove the guilt or innocence of any party involved, but to determine if there is a case to answer and whether the matter should be referred to a disciplinary hearing.

Related: The Dos and Don'ts of Workplace Investigations

What are the responsibilities of an investigator?

The role of an independent and professionally trained investigator is to:

• Determine whether the evidence supports the need for further action or disciplinary measures.
• Ensure fairness, dignity and respect at every stage of the process
• Gather evidence from all relevant sides and manage the evidence in a clear and transparent manner.
• Analyse the evidence gathered and present the findings to the employer in a clear and methodical way.
• Help the organisation understand what has taken place and what actions should be taken next.

Related: How to conduct Disciplinary Procedures: Advice for Employers

What are the benefits of conducting workplace investigations?

Effective and timely workplace investigations have many benefits:

• Building Trust: When organisations and line managers address concerns responsibly and quickly, it fosters trust within the team. Employees are more likely to feel valued and respected, knowing that their issues are taken seriously.
• Creating a Culture of Safety: Demonstrating a commitment to resolving issues helps create a culture of safety. Employees are more likely to speak up about problems, enabling the organisation to address and resolve challenges collaboratively.
• Minimising Harm: Prompt action can reduce the potential harm that workplace issues might cause. This can include mitigating conflicts, preventing escalation, and maintaining a positive work environment.
• Ensuring Compliance: Timely investigations help ensure compliance with UK employment law. Adhering to legal requirements protects the organisation from potential legal repercussions and promotes fair treatment of all employees.
• Preserving Evidence: Acting swiftly preserves evidence and ensures that the investigative process is based on accurate and comprehensive information. This is crucial for making informed decisions and reaching fair outcomes.

These benefits collectively contribute to a healthier and more productive workplace.

Should HR do investigations?

Case law has made it clear that HR should not be overly involved in the investigation process unless a member of the HR team is appointed as the investigating officer. In such cases, it becomes their role to conduct the investigative process.

While there is nothing to prevent internal HR practitioners from handling investigations, if the practitioner conducting the investigation needs to advise managers on matters directly related to the investigation, conflicts of interest and questions around objectivity can arise .

To maintain fairness and objectivity, organisations may prefer to appoint an independent investigator. This approach helps ensure that the investigation is impartial, and that HR can continue to provide unbiased advice and support to management throughout the process.

Do I need a solicitor for a workplace investigation?

Although you don’t necessarily ‘need’ a solicitor, lawyer or barrister to conduct a workplace investigation; it is certainly recommended.

A credible investigator with appropriate training and experience will be able to maintain a professional level of impartiality, follow best practice, ensure that your organisation is legally compliant and assist in especially complex cases with expertise and thorough documentation.

Above all else, instructing a good investigator ensures a fair investigation, allowing your organisation to address issues effectively and maintain trust with staff.

Why choose Frettens?

At Frettens, our specialist Workplace Investigation Team prioritises honesty and meticulous attention to detail. We won’t tell you what you want to hear; we’ll tell you the truth and provide all the facts you need to make a sensible, informed decision.

Our investigators are professionally trained, experienced, accredited and operate in a regulated sector, specialising in legal procedure, investigative interviewing, report writing and investigative practice.

By choosing Frettens, you benefit from a team dedicated to providing clarity and detailed analysis, empowering you to make confident decisions and maintain a fair and compliant workplace.

If you would like to speak to one of our professionals, you can call us on 01202 499255, or fill out the form at the top of this page, for a free initial chat.

Alternatively, you can find out more about what we do in an investigation here.