Workplace investigations – on the increase?
Workplace investigations – expert training for your team
Over the last few years we have been asked to deliver more and more training sessions on workplace investigations. So what’s behind the increase?
First, and as expected, it’s not really a private sector issue. Only 5% of our clients for this subject are from the private sector. And only 10% are from the NHS (which is a surprise). But the real areas where we’ve seen the growth of interest are charities (20%), the education sector (25%) and, of course, local and central government (40%). Large organisations one and all.
Secondly, one of the common themes coming through loud and clear from all clients is the need to widen the pool of suitably trained investigators, beyond either HR or the existing pool of line managers trained in this area.
Thirdly, to continue with the watery metaphor, there’s a need to deepen the pool as well, developing the capability of investigators so that they can conduct independent and robust investigations with less direct input from HR.
When talking to HR professionals in these organisations it is apparent that while they are keen to continue offering professional advice, coaching and support they are mindful of the decision in Ramphal v Department of Transport which clearly put the spotlight on the role of the investigator and the role of HR. In this case the courts were particularly critical of HR overstepping boundaries in directing the outcome of the investigation. This was highlighted in a series of draft investigation reports and copies of emails between the investigator and HR, which were disclosed in court. The employer lost the case as a result.
Lessons from case law continue to stress the need for a robust and consistent approach to investigations to minimise successful claims for unfair dismissal and, potentially, discrimination. Despite being an old case, the principles in BHS v Burchell (ie, that there should be enough investigation as is ‘reasonable’ in the circumstances), continue to be stressed and continue to exercise the minds of investigators and HR alike when considering just what is reasonable. A brilliant case that highlights this is Dickson v Edinburgh Council where, despite having evidence to substantiate a gross misconduct allegation (for viewing pornography in the workplace), the Council failed to investigate the employee’s claim that diabetes had caused his behaviour as they felt the explanation was unlikely. The employee succeeded in his unfair dismissal claim and was reinstated.
The robustness of an investigation cannot be over-emphasised and this means conducting investigations in line with best practice (the ACAS guide to workplace investigations is a useful resource), employment law, and internal policies and procedures.
The principles behind workplace investigations are of course one thing, but putting them into practice is another. Although we are all more than aware of the need for investigators to be independent and objective, for many people this is difficult in practice. Investigators need to be mindful of their own beliefs going into an investigation, about the individuals under investigation, or the subject matter and they need to be aware of how their beliefs can affect their behaviour and ultimately the investigation itself. Even some of the experienced investigators we work with admit that they often have a ‘case theory’ when going into an investigation and recognise how this can affect how they conduct the investigation. In our training we build awareness of this ‘self- fulfilling prophecy’ and encourage investigators to check, challenge and change their beliefs where appropriate, both before and during the investigation. We also highlight how our beliefs, values, memories and experience affect how we filter and interpret the information we receive and, if not managed, may lead us to make assumptions and lose objectivity.
Investigations are often complex and challenging, particularly for managers who, of course, tend to undertake them quite infrequently and are usually balancing the need to investigate in a timely manner with a full business-as-usual workload.
Building the capability of investigators in any organisation starts with the key elements of why investigations are important, what they are, and how to prepare and conduct an investigation. However, for investigations to be truly robust each and every investigator needs to be aware of the potential risks inherent in workplace investigations, what the tests of ‘reasonableness’ and ‘balance of probabilities’ mean in practice, and the need for objectivity and an open mind to fully explore the facts and circumstances under investigation. Investigators also need to be self-aware and have the courage to challenge their own beliefs and thinking in relation to investigations, to understand their responsibility and accountability for the outcome and to work appropriately with HR’s advice and support.
Workplace investigations are a big responsibility for the average line manager to take on. They need support to do so.
Do you need help with workplace investigations?
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