Scrutiny surrounding workplace behaviour is on the rise.
New employer responsibilities under the Employment Rights Bill, greater regulator focus together with recent high-profile cases all mean that HR leaders need to be more vigilant than ever around investigation processes.
As a result, we’re increasingly seeing the benefits of organisations appointing an external investigator for internal investigations at an early stage.
This is particularly key when the allegations are of a serious or sensitive nature, are complex – for example, sexual harassment or allegations of discrimination – and if they involve senior individuals.
How can organisations manage investigations effectively to adhere to employment policies, sustain their culture and ensure employee trust and stakeholder confidence remains intact?
Step one: Audit your processes
Now is a good time to audit your processes to assess how well prepared your organisation is for any potential complaints, before you get to an investigation threshold.
Key areas to audit are:
- Allegations are regularly handled by line managers with no specialist HR or legal involvement
- Lack of a documented investigation policy or standard process
- Your organisation has faced media scrutiny or regulator attention linked to an investigation outcome. Or your organisation is within a sector facing particular scrutiny
- A senior individual has been involved in allegations
- Any complaints involving sexual harassment, discrimination or whistleblowing
- A recurring pattern of allegations – sometimes the same one – indicate a cultural issue
Answering “yes” to these is an indication that your procedures need updating.
Scrutiny surrounding workplace behaviour is on the rise
Step two: When to work with external investigators
One of the most critical decisions in an investigation is whether to handle it internally or work with an external investigator.
The benefits of external appointment are clear: access to specialist lawyers with expertise in the potential legal disputes that could arise, the thorough and impartial questioning techniques needed for this level of process, together with the ability to demonstrate compliance to external regulators and stakeholders.
This matters especially in regulated environments and wherever there’s a high reputational risk.
External investigators should be appointed where the allegation involves sexual harassment or discrimination, senior individuals or where organisations need to demonstrate compliance with the preventative legal duty.
My team was recently successful at getting claims against two clients struck out and costs awarded because of investigating the metadata of submitted evidence. That additional level of expertise can literally make or break a case.
An external investigating team will also be able to safeguard your company’s reputation and support damage limitation. Especially where allegations are likely to attract media attention.
If we look at the recent Scott Mills case, media attention was as much about the BBC’s handling of the matter as the actual allegation.
Step three: Investigation communications protocol
How an investigation outcome is communicated is as important as the outcome itself. How to communicate it depends on who it is being communicated to.
A complainant of a formal grievance is entitled to receive an outcome letter. This wil detail the steps of the investigation, the evidence obtained and the findings.
They will also have a right to appeal this outcome. Any appeal must be dealt with by someone who has not had any involvement in the original investigation. Preferably someone more senior or another external investigator.
Communicating investigation outcomes – as well as your organisation’s response – needs to be managed sensitively.
Companies should strike the right balance between ensuring that stakeholders – employees, investors, shareholders – understand that a robust, impartial investigation took place and that the allegations were taken very seriously, while preserving the confidentiality of those involved.
Specialist advice is recommended, and this is an area that investigators can support.
Communicating investigation outcomes – as well as your organisation’s response – needs to be managed sensitively
Step four: Change readiness
Where wrongdoing has been found or where issues relating to behaviour and culture have been identified, it is important for business leaders to issue clear and transparent communications regarding any shortfalls and the next remedial steps.
Key will be invoking other internal processes based on the outcome of the investigation. For example, the disciplinary process as well as revisiting policies and procedures.
Key areas to assess include:
- Policy and process: Check that your documented investigation policy is reviewed at least annually, together with your organisation’s grievance procedure. With further changes due, now is also a good time to review sexual harassment processes and preventative duty obligations. It’s also worth being clear on when you would appoint external support in future cases
- People and expertise: How well is your team positioned to conduct a full investigation? Do you have ready access to specialist legal support?
- Communications: Make sure you have an updated communications protocol for sharing outcomes with key stakeholder groups. Your legal team can provide guidance here
- Culture and leadership: Has the investigation outcome shed light on a need for wider cultural improvements? How has the leadership team responded? Where is the opportunity to bring change?
Every workplace investigation presents its own set of sensitivities, dynamics and complexities. These must be managed fairly and lawfully, while minimising longer-term reputational harm.
They’re also incredibly difficult processes to lead, involving deeply personal issues and high stakes.
For HR, the priority is receiving the best specialist support, ensuring you comply with your legal obligations, meet compliance and create a safe working environment and positive culture for your people.
