Step by Step – a guide to carrying out workplace investigations

An investigation is a fact-finding mission; it is no more complicated than that.

The purpose is to find out, on a balance of probabilities, whether there is a case to answer; it is not to make a judgment about an employee’s guilt.

The investigating officer’s role is simply to determine whether there is a case to be explored formally through the discipline process.

Generally, an investigation will be triggered either by an awareness that something’s not quite right, or by a specific event.

Common situations that will often require an investigation include:

• receiving a grievance from an employee
• allegations of bullying and harassment
• potential disciplinary matters against an employee
• concerns over company policies and procedures.

The WRC Code of Practice relating to disciplinary and grievance procedures states that employers must carry out necessary investigations into potential disciplinary matters without reasonable delay in order to establish the facts of the case.

When a complaint is made, or a concern is felt, you must investigate it immediately.

It is critically important that you are aware of your organisation’s own disciplinary procedure before you start as this may lay down rules or guidance for the conduct of a disciplinary investigation.

It follows that the investigating procedure you have in place needs to be followed.

The investigating officer must not be connected in any way to the facts giving rise to the disciplinary charge, nor should they be involved in chairing the disciplinary or appeal hearings.

A degree of independence needs to be built-in to the process.

Though there is no legal requirement that the investigating officer be separate from the discipline and appeals process, the Tribunals expect you to instil a degree of separation in the process in the interests of natural justice.

A good investigation looks at all the facts…

By this we mean those that support allegations of misconduct or poor performance as well as those that suggest facts to the contrary.

Your approach must be balanced, and you should take a broad view.

If you investigate too narrowly, any resultant dismissal could be unfair.

Even in a case of gross misconduct you must carry out a proper investigation, though where the facts are clear and admitted, you may have to do less.

If, when you are investigating the main allegation, you discover additional evidence that suggests another aspect of misconduct, or there is further misconduct before the investigation has been concluded, you can include this evidence in the investigation.

If you are still at the investigation stage, there’s no need to refer it to a separate investigation.

Follow your procedures …

It is important that if you have grievance and/or disciplinary procedures in place that you follow them.

If you don’t have specific procedures, then you should be guided by the WRC Code of Practice

The WRC Code of Practice contains general guidelines on the application of grievance and disciplinary procedures and the promotion of best practice in giving effect to such procedures.

While arrangements for handling discipline and grievance issues vary considerably from employment to employment depending on a wide variety of factors including the terms of contracts of employment, locally agreed procedures, industry agreements and whether trade unions are recognised for bargaining purposes, the principles and procedures of this Code of Practice should apply unless alternative agreed procedures exist in the workplace which conform to its general provisions for dealing with grievance and disciplinary issues.

Importance of procedures

1. Procedures are necessary to ensure both that while discipline is maintained in the workplace by applying disciplinary measures in a fair and consistent manner, grievances are handled in accordance with the principles of natural justice and fairness. Apart from considerations of equity and natural justice, the maintenance of a good industrial relations atmosphere in the workplace requires that acceptable fair procedures are in place and observed.
2. Such procedures serve a dual purpose in that they provide a framework which enables management to maintain satisfactory standards and employees to have access to procedures whereby alleged failures to comply with these standards may be fairly and sensitively addressed. It is important that procedures of this kind exist and that the purpose, function and terms of such procedures are clearly understood by all concerned.
3. In the interest of good industrial relations, grievance and disciplinary procedures should be in writing and presented in a format and language that is easily understood. Copies of the procedures should be given to all employees at the commencement of employment and should be included in employee programmes of induction and refresher training and, trade union programmes of employee representative training. All members of management, including supervisory personnel and all employee representatives should be fully aware of such procedures and adhere to their terms.

General Principles

The essential elements of any procedure for dealing with grievance and disciplinary issues are that they be rational and fair, that the basis for disciplinary action is clear, that the range of penalties that can be imposed is well defined and that an internal appeal mechanism is available.

Procedures should be reviewed and up-dated periodically so that they are consistent with changed circumstances in the workplace, developments in employment legislation and case law, and good practice generally.

Good practice entails a number of stages in discipline and grievance handling.

These include raising the issue with the immediate manager in the first instance.

If not resolved, matters are then progressed through a number of steps involving more senior management, HR staff, employee representation, as appropriate, and referral to a third party, either internal or external, in accordance with any locally agreed arrangements.

The procedures for dealing with such issues reflecting the varying circumstances of enterprises/organisations, must comply with the general principles of natural justice and fair procedures which include:

• That employee grievances are fairly examined and processed
• That details of any allegations or complaints are put to the employee concerned
• That the employee concerned is given the opportunity to respond fully to any such allegations or complaints
• That the employee concerned is given the opportunity to avail of the right to be represented during the procedure
• That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

These principles may require that the allegations or complaints be set out in writing, that the source of the allegations or complaint be given or that the employee concerned be allowed to confront or question witnesses.

As a general rule, an attempt should be made to resolve grievance and disciplinary issues between the employee concerned and his or her immediate manager or supervisor.

This could be done on an informal or private basis.

The consequences of a departure from the rules and employment requirements of the enterprise/organisation should be clearly set out in procedures, particularly in respect of breaches of discipline which if proved would warrant suspension or dismissal.

Disciplinary action may include:

• An oral warning
• A written warning
• A final written warning
• Suspension without pay
• Transfer to another task, or section of the enterprise
• Demotion
• Some other appropriate disciplinary action short of dismissal
• Dismissal.

Generally, the steps in the procedure will be progressive, for example, an oral warning, a written warning, a final written warning, and dismissal.

However, there may be instances where more serious action, including dismissal, is warranted at an earlier stage.

An employee may be suspended on full pay pending the outcome of an investigation into an alleged breach of discipline.

Check out our letter suspending an employee

Procedures should set out clearly the different levels in the enterprise or organisation at which the various stages of the procedures will be applied.

Warnings should be removed from an employee’s record after a specified period and the employee advised accordingly.

The operation of a good grievance and disciplinary procedure requires the maintenance of adequate records.

As already stated, it also requires that all members of management, including supervisory personnel and all employees and their representatives be familiar with and adhere to their terms.

While there is no legal requirement to do so, the Courts have shown an increasing preference for the investigation to be carried out by one person and any subsequent formal meeting to be carried out by another.

This is to ensure impartiality.

The argument is that if you have investigated and found that there is a case to answer, it’s very difficult for you to be impartial as a disciplining officer.

An investigation meeting should not result in disciplinary action.

If it becomes clear during the course of a meeting that disciplinary action is needed, adjourn the meeting and write to the employee, giving him/her notice of a separate disciplinary hearing, setting out the findings of the investigation and advising of his/her right to be accompanied.

If you are a small business with very few managers available to take part in the investigation and disciplinary process, it can be useful to include a form of words in your discipline procedure which allows the investigating officer to chair the disciplinary hearing as well.

You should however confine the exercise of a dual-role individual to a situation which has been agreed by the employee and is not at a stage which is likely to lead to dismissal.

Once you have completed the investigation and decided that there is a case to answer, write to the employee to set up a formal meeting.

The letter should give details of the time and venue for the disciplinary hearing and advise the employee of his/her right to be accompanied at the meeting.

The letter should also contain sufficient information about the alleged breach of standards to enable the employee to prepare to answer the case at a disciplinary hearing.

You should provide a copy of the investigation report or notes, copies of the evidence upon which you have based your decision to move to a disciplinary hearing, including witness statements, and any other relevant material.

What happens if an employee goes sick with stress?

How do you handle a situation where the employee who is the subject of the investigation goes off sick with work-related stress as a response to the investigation process?

It’s fairly straightforward to tackle the problem successfully.

Where an employee submits a medical note, write to him/her and say how sorry you are that he/she is unwell and that you will reschedule your meeting with him/her to the following week.

If he/she remains unwell then write again and say that you will carry out a welfare meeting with him/her, as you are concerned for his/her health.

Meet with him/her, have an informal chat and listen to him/her carefully; if he/she is lucid (i.e. can understand what you’re saying and can express himself/herself clearly to the same extent as he/she normally can) then he/she can probably continue with the investigation process.

As most of us are not doctors, our conclusions will be based on our observations as a lay person.

However, if the employee says he/she cannot attend the investigation, say that you will write to your occupational health advisor, briefing him/her on the facts and obtaining his/her advice.

If you write the letter in an appropriate fashion, you will receive an official confirmation that the employee is fit to attend.

A failure to do so will then be an unauthorised absence.

If the employee refuses even to meet with you for a welfare meeting, look at the employee’s terms of employment.

It is usual for the terms to have a clause which gives the employer the right to require an employee to attend for a medical examination.

Write to an occupational health advisor explaining the situation and making clear that the employee is only being asked to attend an informal welfare meeting.

Say that you are very happy to support the employee throughout the process by making reasonable adjustments.

If you have already offered reasonable adjustments, list them and ask what else we can reasonably do.

If the report is reasonable, then take their advice.

While there is a marked trend for employees to try and avoid investigations and disciplinary processes by going sick as described here, there will be occasions where people are genuinely unwell.

Do ensure that you approach matters with an open mind and try to be fully supportive.

Right to be accompanied

Workers have a statutory right to be accompanied by a companion where the disciplinary hearing could result in:

• A formal warning being issued
• The confirmation of a warning or some other disciplinary action (such as appeal hearings)
• The taking of some disciplinary action

Many employers do give a right to be accompanied at the investigation stage.

Check your disciplinary procedure before starting the investigation process.

If it gives the right to be accompanied at an investigatory meeting to an employee, then you must adhere to this process.

Take a look at our disciplinary policy

If the right to be accompanied is not stated in your disciplinary procedures, you should give consideration to the following before making a final decision on accompaniment:

1. Custom and practice – if employees have generally been allowed to be accompanied in the past, they may be entitled to be accompanied because of custom and practice;
2. Disability – where the employee has some disability which impacts on his/her ability to understand the issues, participate in the process and answer the questions asked.
3. Young workers – where an employee is a minor (i.e. is under the age of 18), the law considers him/her to be a child and in such a scenario you have a duty to support him/her;
4. English is not the employee’s first language – such employees must be able to understand the process and be able to engage with it; even where their English is adequate, an investigation is an unusual and stressful situation, and it may challenge their English vocabulary and comprehension. Check to establish whether they need language support.

Planning an investigation

Approach every investigation with an open mind; don’t assume guilt or innocence.

It may be appropriate to suspend the employee on full pay, but this is best carried out as a precautionary measure and it should be made clear that it is not a disciplinary sanction.

Only consider this in the most serious cases where the employee’s continued presence in the workplace might enable him to tamper with, or remove, evidence or to interfere with witnesses.

Plan the investigation carefully.

Define the issues to be investigated.

Break these down further by identifying the potential areas within each issue.

In some cases, this will require the holding of an investigatory meeting with the employee.

In other cases, all you need to do is collate documentary evidence, for example, clock cards to show late arrival at work.

Decide which witnesses you want to interview and list additional sources of information and evidence.

Consider the questions you want to ask during the investigation.

Physical investigation within the workplace might be appropriate, depending on the nature of the report or incident and photographs of an incident or hazard might be required.

If you do carry out a physical investigation, respect the employees’ privacy.

Collect any documents that are relevant to the alleged disciplinary breach.

This includes files, CCTV footage and computer records.

Our investigation plan  and investigation checklist will assist you.

Writing to employees at the investigation stage

Many organisations write to the employee prior to setting up an investigation meeting.

As we pointed out earlier there is no legal right to do so and you need to consider if this is the right course of action.

If you write to say that you’re carrying out an investigation and give details of what it’s about, it is very likely that evidence will be destroyed or excuses and counter arguments considered in advance.

The advantage of surprise can be very useful.

If you do decide to write to the employee you can use our template letter informing an employee they are being investigated

Gathering evidence

The investigating officer’s role is to collect data in order to allow the organisation to determine whether there is a case to answer.

It’s important to approach this task holistically.

It is not the aim of the investigation to get enough evidence to escalate matters to a formal disciplinary hearing come hell or high water.

Rather it is about approaching the data collection in the round, collecting all the facts, including those which may explain or mitigate an apparent transgression.

Interviews

Conduct interviews as soon as you can, before memories fade.

When conducting interviews, set up ground rules, describe the process to interviewees and explain the need for confidentiality.

Witnesses can also be interviewed more than once if necessary, for example, if further evidence comes to light.

Make full notes at the time of any interview.

The interview must be sufficiently detailed, capture the relevant content of the conversation and be as factual as possible.

At the end of the interview, ask the witness to read through the notes (or read them back to him/her) and allow him/her to make any additions or amendments that he/she thinks are appropriate.

Ask the witness to sign the handwritten notes.

Once it has been typed up, give the transcript of the interview to the witness for further checking and signature and keep the original notes on which the statement was based.

What happens if the facts are not in dispute?

It’s your responsibility to get the fullest possible understanding of the facts.

An admission in itself, even of potential gross misconduct, does not absolve you of your responsibility to investigate fully.

If you don’t establish all the facts, you risk a finding that any resulting dismissal is unfair, both for a failure to carry out a reasonable investigation and a failure to comply with the Code of Practice.

If an employee refuses to attend an investigation meeting, or simply does not attend, reschedule at least once.

There’s no legal duty to do so, but you should always take the approach of the reasonable employer.

Thereafter, you’re entitled to make a decision as to whether or not to invite the employee to a disciplinary hearing or deal with the matter informally on the basis of the information available.

Collate the information and decide on next steps

Compile your finding into a report.

Your conclusions should rely on evidence and should not engage in speculation.

You can use our Investigation report template for this.

If you feel there is a case to answer, write to the employee arranging a disciplinary hearing, giving the reasons for your findings.

You’ll find our template letter here 

You should provide all the relevant information to the employee so that he/she can properly understand the charges and can prepare himself/herself.

The employee should have the opportunity to see these papers a few working days in advance of the hearing.

If the papers are presented to the employee on the day of the hearing, he/she may argue that he has had insufficient time to prepare a proper response to the disciplinary hearing.

If you decide that here is no case to answer, tell the employee that you will not be taking it any further and confirm it in writing.

Shred the evidence you have gathered. It should not be placed in a relevant filing system, such as a computerised personnel file, as this may be in breach of data protection.

If the employee has been suspended during an investigation, lift the suspension immediately and allow him/her to return to work.

Burden of Proof

If you are investigating the alleged breach of a workplace standard you will have to be satisfied that, on the balance of probabilities, there is a case to answer.

The balance of probabilities means that something is more likely than not to have occurred, or it is more likely than not that it did not occur.

Interviewing witnesses

When interviewing witnesses, identify as precisely as you can what needs to be established from each interviewee and prepare accordingly.

Prepare some open questions to help get things started.

Guidance for taking witness statements

Establish ground rules for the interviews, describe the process to witnesses and explain the need for confidentiality.

‘Witnesses’ includes the employee whose acts are under investigation, as well as others who are not themselves being investigated for any breach, but who may have been seen, heard or experienced the matter under investigation.

Try to have two investigators present during the interview so that one can ask questions and the other can take notes.

When you are interviewing the employee under investigation, explain to him/her that an investigatory meeting is not a disciplinary one.

Ask the witnesses to give an account of what took place.

This should be in terms of what they personally witnessed or had involvement with.

Questions should be focused on the issue at hand and phrased in an open manner that does not lead to simple yes or no answers.

Listen carefully and explore the answers.

Avoid putting words into witnesses’ mouths or suggesting answers.

All questions should aim to encourage witnesses to recall their version of events in their own words.

If you are faced with a situation where a misconduct issue comes down to one employee’s word against another’s, you can give the accused the benefit of the doubt.

What to include

Written statements should start with a positioning statement.

For example, ‘My name is John Finch and I am the Warehouse Manager. On 26 October at about 9.30am I was working in my office when Terry James came in’.

The statement should set out events in chronological order, in as much detail as possible.

The statement is given with the witness referring to himself in the first person singular, i.e. ‘I saw this, ‘I heard that’.

Encourage the witness to stick to the facts.

It’s very easy for bits of hearsay or opinion to creep in.

Hearsay is second-hand information.

For example, if John tells you that Janet saw the postman arrive at 10.00am, this is not evidence that Janet saw the postman, only of what John says Janet told him.

We would have to go back to Janet to gather direct evidence.

Failure to attend

If the employee fails to attend an investigatory meeting, contact him/her and find out the reason for his/her lack of attendance.

There is no legal obligation to rearrange the meeting but be mindful of the need to carry out a reasonable investigation as part of a fair disciplinary process.

It’s good practice to rearrange the meeting unless it is clear that the employee does not intend to cooperate with the investigation.

Consult the employee to ensure that the rearranged time is suitable for him.

If the employee fails to attend again, without good reason, you can decide whether or not to go ahead on the information you have.

If the employee refuses to attend the meeting unaccompanied, make a decision as to whether or not to allow the employee to be accompanied, applying principles of fairness.

Question technique

The ability to ask the right questions is incredibly useful.

There is a range of question types available to you to use.

Choose the type of question that will give you the information you want and will allow you to control the pace of the interview.

Take your time when questioning.

Think about what you want to ask so that you can target your questions appropriately, give the employee time to answer fully and remember, silence can be your friend; if you allow people some space and silence, they often talk a lot more – the more they talk, the more information they give.

Being able to use open questions effectively is an important skill.

They’re useful for developing an open conversation –‘What did you do on your holiday?’ – or finding out detail – ‘What else do we need to do to make this work?’

In workplace investigations, an ability to ask open questions is essential; they are the basic tool of interviewing.

Open questions are so called because they open up the discussion by encouraging the person being questioned to provide data, which leads to more questions.

You’ll find that you can get much better data, much faster if you ask open questions. Once you have asked a question, keep quiet and listen – let the person you’re questioning respond.

You need only interrupt with another question if the person is going off the point or not giving you the information you need.

Useful words and phrases which encourage the employee to respond include:

how                            why

when                          where

who                            what

describe                    explain

demonstrate            give an example

list                               expand on

tell me                       help me understand

Target your questions carefully

Many investigators ask questions in a very random way.

This scattershot approach means that information gathering is superficial and important evidence is often missed.

Explore one area fully.

Only when you are fully satisfied that you have gathered all the relevant information do you move on and start exploring another area.

• Start by asking an open question about a particular matter you want to explore
• Get more detail by probing, using as many questions as you need
• Summarise to check your understanding
• Close by asking a sweeper question. Ask ‘Is there anything else you’d like to tell me about this matter that I haven’t asked you about?’

Documenting the investigation

It is important that the investigator creates and maintains a proper record of the investigation.

An investigation plan is recommended.

You may find our investigation plan helpful.

The investigator must carefully document the information learned during the investigation and a record of each step of the investigation – including dates, times, locations and persons present – should be made.

All interviews must be documented through written notes and/or audio recordings.

The notes should contain the facts gathered from the interviewee, not the investigator’s impressions or conclusions.

If the investigator opts to create an interview record with written notes, he/she should consider having an additional person present during the interview whose job is only to take notes to ensure accuracy.

In such a case, after the interview, both members of the investigative team should be involved in preparing the post-interview memoranda.

The investigator should even document the reason why a potential witness was not interviewed.

Assume all documents will be discoverable

It should be assumed that all documents gathered and written during the investigation will be discoverable.

Thus, the investigator should take caution when committing notes and ideas to paper and should avoid speculative conclusions.

When making credibility assessments after each interview, the investigator should rely upon observable facts instead of making legal determinations, drawing conclusions, or relying on his/her personal interpretations, opinions or assumptions about the witness.

Observable facts may include the witness’s demeanour, consistency in the facts reported, inherent plausibility, motive to falsify, bias, past problems of a similar nature, and whether corroboration of the facts reported exist.

The investigation report

A written report is the most effective means of organising evidence and conclusions and is critical to demonstrating that the employer took the allegations seriously and responded appropriately.

The report should contain:

1. A description of the complaint and the investigative process
2. Identification of any relevant company policies or guidelines
3. A list of relevant evidence, including documents reviewed and witnesses interviewed, and if any known evidence was not reviewed, a reason why
4. A summary of the facts learned during the investigation relevant to each allegation
5. These should be based only on evidence obtained during the investigation. Legal conclusions should be avoided, although conclusions regarding violations of policy are appropriate.
6. There is no need to make recommendations as to corrective action in the report, and the report should only be distributed to those individuals responsible for making a final determination as to corrective action.

Check out our Report template

Once a decision has been reached, it should be communicated to both the complainant and the accused.

Though the communication should occur promptly following the investigation, it need not be detailed.

With respect to others involved in the investigative process, relatively little information need be conveyed to respect the privacy of all parties involved.

Detailed information should only be shared on a “need to know” basis.

Discipline

The purpose of an investigation is simply to find out on a balance of probabilities whether there’s a case to answer.

It is not to make judgment about an employee’s guilt.

Once you have completed your investigation and decided there is a case to answer, you will set up the discipline hearing.

Part of that is to ensure that the disciplining officer, employee and his companion have all been given a copy of the findings.

The investigating officer is probably the best person to make the decision about whether there’s a case to answer because he’ll have the facts at his/her fingertips.

Some organisations don’t require the investigating officer to attend the disciplinary hearing.

However, there is merit in having the investigating officer attend to present his findings.

It also means that the discipline officer can question the investigating officer, as can the employee and his companion.

This saves time and facilitates a clearer understanding.

Common mistakes in internal investigations

Despite all of the planning, organising and documenting that occurs in an investigation sometimes mistakes are made.

Common mistakes include:

• Jumping to conclusions
• Allowing management to improperly influence the investigation
• Failing to give the alleged bad actor a fair chance
• Delaying the investigation. Do not allow the investigation to languish because of day-to-day business stresses or witness and investigator unavailability
• Allowing personal knowledge/reputation to influence the investigation
• Failing to exhaust all avenues of the investigation, such as by excluding potential witnesses or ignoring open issues
• Failing to inform the accused or others involved in the investigation process that retaliation is strictly prohibited and will not be tolerated or failing to follow up to ensure that there is no retaliatory conduct
• Poor or inadequate documentation
• Accepting conclusions as fact
• Breaching confidentiality
• Making a decision in a vacuum, without the benefit of information and documents that are important

Conducting an Investigation: Final Checklist

• Have good policies in place
• Make your investigative plan, before a crisis erupts
• Get the right investigator(s) in place
• Locate your evidence:
• People
• Paper
• Electronic
• Preserve your evidence
• Employ lawful, effective interview techniques
• Be respectful of employees when conducting searches of persons and property
• Be consistent and follow protocol at every stage of the investigation
• Expansively document every stage of the investigation

You can find our investigation checklist here