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Looking into workplace investigations, Part 8 – don’t skip the opening ceremonies (UK)

Right. You have now done all the prior preparation for your investigation which you can – identified the relevant policies, noted the points you need to get at, maybe heard what the complainant wants out of it all, understood the limits of your own brief and made sure that there is no avoidable reason why you shouldn’t do it.  Now it comes to the actual investigation part – talking to the makers of disclosures or complaints, those responding to them and drive-by witnesses.

You can find untold volumes of advice on this particular contact sport – just googling “interviewing witnesses” today pulls up 16 million results.  I have not quite read all of those but there do seem to be some very consistent themes in those I have, almost all driven by common courtesy and common sense.  Remember that there is no real law here, only good practice and the overriding objective of obtaining a tenable view of what happened and why, while limiting the scope for later challenge to the impartiality of your findings, their technical accuracy where appropriate, the inclusion of what is relevant and the exclusion of what is not. While on the subject of contact sports, the relevant Acas Guidance contains the strangely (or at least hopefully) superfluous suggestion that you should not make physical contact with the person you are interviewing.  This is well pre-Covid and no other explanation is provided for it, but it certainly should not be taken as precluding a professional shaking of hands in your investigation meeting.

After the introductions, what should you say in opening the process?:

  • What your role is – are you merely producing a report on the facts as you find them, or also making recommendations for next steps?

  • Who within the employer has asked you to carry out that role That gives the interviewee someone to complain to about you, but more particularly, shows that you have internal accountability to the business.

  • The particular issue you are looking into. How much detail is required here will depend on who you are interviewing:  (a) the person making the allegation or complaints knows more about what is going to be discussed than you do, so no real explanation is required there. (b)  a third-party witness need (in fact, should) only be told about the parts of the complaint which concern him – the wider context is unlikely to be relevant and could lead the witness to give answers aimed at the bigger picture rather than based on his direct knowledge of his own little piece of it; and (c)  where the interviewee is to be asked to respond to particular allegations against him, he will fairly have the right to understand what is being said in almost all the detail you can provide, as a minimum enough to allow him to admit, deny or explain each incident and to know what further evidence may be relevant.  If he does not have that information in advance then you should consider granting any reasonable request which he may make for a little time out to consider or collect evidence on any points new to him.

  • How you will be noting what it said – a separate note-taker, doing it yourself, making an electronic record, etc., and your willingness for the interviewee or any companion to make their own notes if they wish, plus your intention to send them a copy of the typed-up notes when they are done.

  • Some sources say that the investigator should promise to agree those meeting minutes afterwards, but we would not generally go further than inviting comments on them.  Seeking agreement can be an obstacle to progress – you know what you heard but the inevitable temptation for a party asked to agree notes is to require them to say what he realises in retrospect that he should have said, rather than what he actually did.  Comments or supplementary evidence received can still be kept on your file, however, and taken into account if it becomes appropriate to do so.

  • An approximate but not binding timescale for the completion of your investigation.

  • That you are not able to guarantee confidentiality for anything which the interviewee tells you, on the basis that if the issue becomes disputed, his evidence may have to be disclosed.

  • On similar grounds, that you will not be able to take into account in your conclusions anything which you are not able to refer to in your report.  Therefore there is no real scope for the interviewee telling you things “off the record”.

  • It may be that the launch of a formal investigation and the realisation that it is all a bit more serious than he thought (in particular that he is imminently going to be pressed to put flesh upon the bones of his allegations) may lead the employee to seek some form of exchange with you about a resolution which could be reached without all this fuss.  How you react as investigator depends on whether that approach is on or off the record.  The employee may be answering belatedly your open question (see here) about his ideal outcome from the grievance, in which case you note it down and move on.  Alternatively, he may be making or inviting a proposal outside the formal process (in particular, almost anything involving monetary compensation) which will probably be without prejudice.  If it is the latter then it is wise to shut that conversation down immediately.  He can be invited to pursue it instead with HR, Legal or a suitable line manager, but if you as investigator get into it, then you will hear things that you cannot then rely on and/or are very likely to lose your perceived neutrality.  We have known cases where (with the knowledge and consent of all parties) the investigator has very successfully morphed into a broker or mediator, so it can be done.  However, the obvious risk is that if it turns out that no agreement can be reached, your perceived ability to investigate impartially may be prejudiced.

  • Any questions? Happy to go ahead? Time for Part 9.

© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume XII, Number 27
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About this Author

David Whincup Employment Attorney Squire Patton Boggs Law Firm
Partner

Following 10 years at a Magic Circle firm, David has been head of our London Labor & Employment Practice since 1994.

His expertise gained from over 30 years as a specialist employment law practitioner cover a wide variety of employment-related issues, including individual and team recruitment issues, policy and contract drafting, disciplinary and grievance procedures, individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding confidentiality and...

+44 20 7655 1132
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