Managers will frequently be required to conduct formal investigations in the course of managing employees. These investigations may be necessitated by the conduct of an employee or may be a response to an employee complaint. In each case, the “investigator” will need to ensure that the investigation is conducted under and in accordance with the applicable procedure; for example, the disciplinary or grievance procedure. However, regardless of the procedure followed, investigators should observe some general principles when conducting any internal employment-related investigation.
Who should conduct the investigation?
To be effective it is important that investigations are seen to be conducted impartially, thoroughly and fairly. Careful consideration should be given to the questions of who should conduct the investigation and who should be spoken to as part of it. Internal grievance and disciplinary policies often dictate who within an institution should be appointed to conduct the investigation, and this should be the institution’s starting point.
First steps in the investigation process
The investigator must have sufficiently detailed information of the matter before the investigation begins. Only if the investigator has this information will he or she be able to determine the scope of the investigation that is required. In the case of grievances or other employee complaints, the employee will often provide insufficient information at the outset to allow a detailed investigation to take place, in which case the first step for the investigator will be to request the additional information required. Similarly, where the investigation is under a disciplinary procedure the investigator may need to make further inquiries of managers to identify the specific alleged misconduct to be investigated if this is not initially clear. Only with a clear understanding of the issues will the investigator be in a position to conduct a thorough and fair investigation. It will also ensure that the investigator does not waste time considering irrelevant or peripheral matters and thereby allow the investigation to be completed expeditiously.
Identifying witnesses and other evidence
Once the issues to be investigated have been determined, the investigator should identify appropriate witnesses. As the investigation progresses and further facts come to light, it may be necessary to speak to other witnesses in addition to those initially identified. It may, for example, be appropriate to speak to individuals identified in the course of other witness meetings including (in the case of an investigation into an employee complaint) by the individual complainant themselves. This is not to say that all potential witnesses identified by individuals must be interviewed, and the investigator must be careful to ensure that he or she does not allow an investigation to deviate from a consideration of the relevant issues or to become so broad as to be disproportionate to the matters under investigation. The investigator, if necessary with advice from the institution’s human resources department, must ultimately determine the scope of the investigation.
The same factors will apply to any documentary evidence to be considered under the investigation. It will be for the investigator to determine what documents may be relevant to the investigation, having regard to the initial allegations or complaint and any information that may emerge in the course of the investigation.
The most thorough and fair investigation can be undermined by an inadequate investigation report. Once again, the relevant provisions of any applicable procedure should be consulted in determining the form and content of any report. However, the report should ideally set out the evidence that the investigator has considered (including the identity of witnesses, except where anonymity has been agreed) and provide a summary of the information obtained.
When drafting the document, careful consideration should be given to whom this document will be addressed and made available to (which will depend on the nature of the investigation and the terms of the relevant procedure). However, the investigator should bear in mind that in most cases the report will be a disclosable document for the purposes of any subsequent legal proceedings and may be requested by individuals under the Freedom of Information Act or the Data Protection Act.
Diane Gilhooley is HR expert in the education team at Eversheds.