Workplace Investigations: How to Get Them Right

January 4, 2022

By Rachel Ford-Evans

Workplace investigations can cause major problems for employers if they are not conducted competently and by the right investigator.

The investigation is often the first step in a wider process which may end in a legal dispute, and getting it right is essential to set the foundations for that process and avoid liability further down the line.

However, just as important these days is the reputational factor. An employer can no longer guarantee that an investigation report will be kept confidential – leaks, whistleblowing disclosures and subject access requests can all lead to its disclosure or publication. A shoddy or inadequate investigation report can lead to the employer suffering reputational damage with its staff, clients or regulator, or even being singled out in the media.

Some of the most common pitfalls employers face when attempting to conduct an internal investigation are:

  • Obstructive employees: Employees are often unwilling to be completely honest during an investigation against them or one of their colleagues. An employee being investigated will often attempt to delay or stop the process, and a reluctant witness may try to refuse to give evidence altogether. It is essential for the investigator to keep control of the process and deal with these issues swiftly and reasonably.

  • Confidentiality: Confidentiality can be a minefield during the investigation process and can throw up difficult legal issues such as what happens when a witness wants to remain anonymous, who should be shown a copy of the investigation report, or what to do if a leak occurs during the investigation.

  • “Mission creep”: An investigator may discover, or be told, something during the course of their investigation which they want to add to the list of allegations against the employee being investigated. However, this needs to be done very carefully, and at the right time, in order to prevent the investigation from “snowballing” and to prevent the process being deemed unfair.

  • Inexperienced investigators: Getting the choice of investigator right is absolutely essential to the success of the investigator. This is not just to avoid accusations of bias but also to ensure that the investigator is experienced enough to conduct and keep control of the investigation and prepare a watertight investigation report.

At Darwin Gray, our Employment and HR team are experienced investigators and regularly conduct investigations in relation to:

  • Grievances and discrimination complaints

  • Complex disciplinary processes involving issues ranging from sexual harassment to employee negligence

  • “Lessons to be learned” after the exit of a valued employee, or after an Employment Tribunal process

  • Whistleblowing allegations

  • Board disputes

  • Workplace culture, HR practices and organisational change

We can act as independent investigators when it is not appropriate for the investigation to be conducted internally. As legal experts, we also give you the comfort of knowing that your investigation will be watertight and we will highlight any legal issues which might arise later. We are experienced in dealing with employees of all seniorities and will handle your investigation sensitively but thoroughly.

Please get in touch with Rachel Ford-Evans on 02920 829 120 or for a free, no-obligation chat about how we can help you with a workplace investigation.



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