How to conduct an HR investigation

1. Why do we investigate?

Let’s start at the beginning, why does it matter to investigate properly? Sometimes it can be tempting to avoid the investigation, it feels formal and unnecessary.

However, HR investigations often cover sensitive, complex, and potentially costly issues. Tribunals will look at whether the employer could have ‘reasonably’ been expected to know there was an issue, and whether they took the appropriate steps. So, ignoring it won’t make the problem (or the potential liability) go away!

A thorough investigation process is also important for the employee climate and wellbeing, we need our people to know we follow fair and established processes. If we fail to manage investigations correctly, we could see decreased morale and increased turnover.

2. How do we know WHEN to investigate?

If you are familiar with your handbook, there’s a likelihood that your policy will give you the option to explore informal resolutions and there are times when this is appropriate. However, you will need to use your judgement to determine when a complaint is of a serious nature and requires a formal process.

As a general rule, if you hear, see or suspect any of the following has taken place, you need to initiate a full investigation:

• Discrimination
• Harassment
• Victimisation
• Whistleblowing or protected disclosures
• Grievances
• Bullying
• Health and Safety breaches
• Illegal activity

If you’re unsure what some of the above phrases mean, we have linked some helpful articles on these tricky terms.

3. Investigation time frames

There’s no set schedule to manage an investigation, but ACAS will tell employers they need to be reasonable. This means dealing promptly with an investigation and keeping everyone up to date on the time frames.

If the allegation is serious, and potentially a matter of gross misconduct, it could undermine the case if the business waits several weeks before starting a process.

Be realistic about your time and the time of any key witnesses in the investigation. Ultimately, the more complex the complaint, the longer it will take but the aim should always be to conclude the investigation as swiftly as possible without compromising its accuracy.

4. How to conduct an investigation

Before you start any process, check your internal policies and procedures. These serve as a rule book that you need to follow; employers often fall foul of not following their own processes.

If you don’t have up to date policies, refer to ACAS. They are the UK employment law advisory service, and have helpful instructions written in plain English. A tribunal will also look at whether you have complied with the ACAS code of conduct.

Following an established process will keep your investigation fair and impartial. Share the process with the employee’s involved, so that they understand what is happening and why.

If you’d like to build your knowledge around managing investigations, join our open course.

5. When do we need to consider suspension?

In most circumstances, employers are expected to follow a thorough investigation before taking next steps. However, in some cases you may need to act sooner rather than later.

If you have received a serious complaint, such as harassment, theft or a serious breach of health and safety, you may need to consider suspending an employee.

The ACAS rules tell us we can only suspend employees in the following circumstances:

• To protect the investigation process, for example, if you have concerns about evidence being destroyed or witnesses being influenced.
• To protect the business, for example, if there is a risk to your business interest, property or customers.
• To protect other staff members, particularly if there have been serious accusations of bullying or harassment.
• Or, to protect the person under investigation if they might be at risk in the workplace.

If you do suspend, make sure the employee understands why you have made this decision and confirm this in writing to them.

Make a note of your thought process at the time of the decision, document any alternatives you considered before arriving at suspension. Save this, it could become relevant later on.

Remember, suspension is not a form of punishment and will usually be on full pay. You still have a duty of care to the employee who is suspended, so stay in touch and let them know how you are progressing the investigation.

6. Who does the investigation?

Often, HR will lead the investigation as they are trained in employment law. However, managers can also undertake investigations.

When considering who should lead the investigation, remember the following:

• Does the investigator have a personal relationship with anyone involved in the investigation? They may not be impartial if they are investigating their best friend.
• Are they confident in making a potentially difficult decision? They could be asked to justify their choices to a tribunal one day.
• Do they have the appropriate skills and attributes – ideally, some training on investigations should be offered, but at a minimum, they need to be able to communicate effectively and with empathy to potentially upset employees and have an eye for detail to draw the investigation together.
• Don’t forget, if the investigation leads to disciplinary or further action, typically a more senior person is required to hear an appeal. Don’t escalate to the top of your organisation too quickly, or you’ll have nowhere else to go!

All of these factors should be considered based on the people and resources you have available if you’re a small business. Or, give Jaluch a call to talk about options for support.

7. Starting the investigation

At the start of every good investigation, is a good plan of action. We recommend creating an investigation plan, detailing the nature of the complaint, and planning a timeline.

The first thing your plan should aim to understand is the scope of the investigation, complaint, or allegation. Define what you are being asked to investigate and ask if the complainants agree with what you are proposing . This will reduce the likelihood of any claims that your investigation has been unfair.

For example, the scope of my investigation is to understand whether bullying behaviour was carried out by Employee A towards Employee B on the 12^th April and, if bullying behaviour did take place, whether the behaviour was motivated by sexist beliefs held by Employee A.

Next, decide who you need to speak to and the order in which you will do so. You might need to speak to some witnesses before others, to check for conflicting information. It’s important investigations don’t involve everyone as they should be confidential, but if the employee at the heart of the complaint has asked you to speak to someone, you normally will.

Prepare for your meetings by composing a list of questions for the witnesses. Tailor these questions to the individual employees, remember that not everyone needs to know everything! Ask questions that are appropriate for the employees’ level of responsibility in the company.

Finally, collect any other evidence available to you. This could include emails, policies, teams’ records, 121 records or anything else you believe is relevant.

8. Collecting your evidence

If you’re conducting interviews you will need to ensure your witnesses understand how their statements might be used and what their obligations are.

Witnesses should:

• Be informed that their responses could be shared with the employee who is under investigation.
• Be advised on the confidential nature of the investigation, and the expectations of the witnesses to maintain that confidentiality.
• Be reassured that the company will support them if they receive any back lash for providing a statement.

It’s often helpful to have a note taker present, so you can focus on asking good questions. Remember to confirm in writing with the witness afterwards that they are happy the notes taken are accurate.

Employees don’t usually have the right to be accompanied to an investigation meeting, as there is no formal outcome i.e. a dismissal or a warning, that takes place in a disciplinary hearing. However, it is considered good practice to offer notice and the option to bring a companion so check whether your policy has any guidance on this.

9. Writing the report

Writing the report can be the most daunting element for some people. Start with a clear structure that is logical to follow, for example, begin by outlining the complaint and scope of the investigation and move onto how you collected evidence.

Refer to your evidence in the appendix and talk about how the evidence has influenced your final decision. If you have any doubts about the accuracy of the evidence, acknowledge this, your report needs to be an honest reflection of the facts, not a witch hunting exercise!

Finally, offer a conclusion of the key points you have addressed. It’s not normally the role of the investigating manager to impose a sanction, so you don’t need to say if you think the person should be disciplined. You will need to decide whether you are upholding the allegation / complaint and recommend further formal action if you think it’s necessary.

10. Investigation questions for witnesses

Remember to always adapt your questions to the employee and the situation, but if you’re looking for some inspiration, here are a few example questions from the Society for HR Management that are commonly used in investigations:

• What exactly happened?
• When did the incident occur, or is it ongoing?
• Where did the incident occur?
• How did you react?
• Who else may have seen or heard the incident?
• What does a resolution look like for you?

Investigations are normally stressful for everyone involved. If you’re the investigating manager, remember that the more comfortable your witnesses feel the more likely you are to collect quality information.

How Jaluch can help

If you’d like to learn more about investigations and build up your confidence and competence to investigate, please do book onto our next workplace investigations open course.

There are certain circumstances where appointing an external investigator will be the best choice for your organisation, if you’d like to discuss how we could support your organisation with an internal investigation, get in touch or call 01425 479888.

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Disclaimer: The information contained within this article is for general guidance only and represents our understanding of employment and associated law and employee relations issues as at the date of publication. Jaluch Limited, or any of its directors or employees, cannot be held responsible for any action or inaction taken in reliance upon the contents. Specific advice should be sought on all individual matters.