In my HR career, I’ve had many days that have felt more like an episode of The Bill than a day at the office/factory/warehouse. Disciplinaries, suspensions, warnings, grievances – and many, many investigatory interviews, witness statements and fact-finding expeditions, in search of ‘The Truth of the Matter’. Yet even if you find the elusive truth, often investigations are compromised by managers playing Good Cop/Useless Cop and failing to follow the right procedures. So here’s how to avoid ineffective investigations!
Before you start to investigate an issue, consider whether it’s necessary or appropriate to suspend anyone involved pending the investigation. This could be to avoid interference with the investigation, to keep people apart (e.g. in cases of bullying and harassment allegations) or if the investigation may ultimately be the first step to dismissal. I recently advised a client who was summarily dismissed for alleged gross misconduct – yet had been allowed to continue working for several weeks while the investigation and resulting disciplinary took place. A tribunal would consider that if the misconduct wasn’t serious enough to merit suspension, it certainly wasn’t serious enough to merit dismissal – and based on this argument, the employer settled out of court. So that oversight cost them a few bob!
If in doubt then, better to suspend staff – but if you do it, do it right! That means a formal suspension, by a manager with a neutral witness, and confirmed in writing. Point out that it is ‘without prejudice’ – i.e. not a penalty but a precaution pending investigation – and on full pay. Escort them from the premises immediately afterwards. The employee can’t come in during the suspension for any reason unconnected with the investigation (so no popping in to catch up with workmates when daytime TV gets too dull) and should not have any contact with anyone involved in the investigation.
So now, time to get your Sherlock head on and find out the facts! An investigating manager should be impartial – so not a witness, not a disciplining manager, not an appeal manager and definitely not a victim! If you’re a small company and just don’t have the resources, then get in an independent professional (me?!) to either investigate or deal with a disciplinary or appeal.
You’ll need to hold a few investigatory interviews with everyone involved – remember, these are NOT disciplinary interviews! So just stick to the facts. You will need to take witness statements from each witness independently as soon as possible. These should be mostly verbatim, but it’s fine to abridge or refine these. (This means taking out repetition, swearwords, excessive use of ‘er’ ‘um’ ‘you know’ ‘innit’ etc. – it doesn’t mean taking out important detail or making it up!)
Statements should be signed off and dated, and each witness must be told that their statements may be used during any subsequent disciplinary hearing and that their attendance may be required. Before any hearing, the employee being disciplined must be shown any witness statements. You can anonymise statements and take out any identifying detail – try and maintain confidentiality as much as possible and ask anyone you interview to do the same. But yes, this can be difficult! People may refuse to get involved for fear of repercussions, often with valid concerns. I was once investigating a harassment case where a car was torched in the car park, which the car owner insisted was a direct result of them providing a witness statement (is there a Dorset mafia and were we employing their members?) So you can’t force someone to provide a statement – all you can do is ask nicely and promise to protect them and their identity as much as possible. But bear in mind that if a tribunal gets involved, they can insist on lifting that anonymity.
It’s not just witnesses though – there’s forensics! Gather as much evidence as you can. This will depend on the alleged offence, but could include work records, clocking printouts, documents, CCTV footage, recordings, data etc.
For disciplinary investigations, use all the information you’ve gathered to decide whether or not to go ahead with a disciplinary meeting. Remember, the investigation is NOT to decide on a penalty, only whether to go ahead with the process! Pre-empting any outcome could potentially render the disciplinary process unfair in the eyes of a tribunal panel.
The purpose of an investigation then is purely to see if there is enough evidence to merit further action. But if the answer is yes, a botched or tainted investigation process could jeopardise any outcome further down the line. So be sure to stick to the right procedures, and don’t let an inept investigation come back to bite you on the behind!