A workplace investigation, also called ‘fact-finding,’ is the collection of any evidence related to an allegation of misconduct. A workplace investigation is usually the first step in a disciplinary process.
Workplace investigations can be a serious matter. You may be investigating minor misconduct, which may lead to a disciplinary warning, or you may be investigating gross misconduct, which could lead to the firing of an employee. When conducting a workplace investigation, your employees deserve respect and discretion above all else, so make sure you’re only discussing the matter with managers who need to know or your HR department.
Why Would I Need A Workplace Investigation?
If there is an allegation of any misconduct or serious wrongdoing by an employee or third party, you should investigate the matter thoroughly.
When the allegation is brought to you, you must gather as much information from the complainant as possible. Assure them that you take their complaint seriously and that the matter will be dealt with confidentially and sensitively. Gather as much information as possible when the allegation is made to understand whether this is a disciplinary matter.
Occasionally, employees or third parties make untrue allegations which can be stressful for the employee being questioned. This is why workplace investigations are so important—if the allegation is untrue, there will be little to no hard evidence, and the case will unravel. Making false allegations in bad faith about a colleague is a disciplinary offense, so keep a record of every conversation about the allegation from the start.
You should outline that making false allegations about a colleague or refusing to take part in an investigation procedure may lead to disciplinary action in your disciplinary policy. Your investigation policy should be outlined at the beginning of your disciplinary policy.
Workplace Investigation Process
When conducting a workplace investigation, it’s important you follow a fair and consistent process so that all employees are treated equally. Conducting a thorough investigation process will lead to the fairest possible outcome if the matter goes to a disciplinary hearing, and will provide a thorough paper trail should the matter go to an appeal process or a tribunal hearing. Here are all the steps you need to take in order to conduct a fair workplace investigation.
Write a robust investigation policy
An investigation policy should be a part of your disciplinary policy and should outline the steps you would usually take in a workplace investigation.
Every investigation will look slightly different depending on the nature of the allegations. However, a rough outline including the steps you will take, how the employee being investigated will be informed of any updates, and how the investigating manager will make their decision will make the investigated employee feel more at ease. Your policy should also outline an employee’s right to be represented and their right to privacy while the workplace investigation is happening.
Take the necessary immediate action
If you’re investigating gross misconduct, such as theft or a serious health and safety breach, you should suspend the employee. Minor misconduct, such as poor timekeeping or minor insubordination, does not require suspension unless the employee is on a warning and may be dismissed. Legally, any suspension must be on full pay, and the employee should be suspended until you can conclude the investigation.
Suspension does not imply guilt or punishment; it is simply a way to ensure the investigation process is not hindered by the employee, i.e., by destroying evidence or intercepting witnesses. Suspension can be stressful for employees, so tell them about their suspension in the most empathetic way possible. Ensure they understand it is not a punishment but to help the investigating manager make a fair and balanced decision.
The employee should then be allowed to ask any questions they may have and to collect their things. They then need to be escorted off-site. You should follow up with a letter explaining that they have been suspended indefinitely while the investigation occurs. Let the employee know that they will be suspended on full pay to reduce any financial concerns they may have.
You should inform them that you will keep them up to date with any significant developments in the case. You must also list any support networks available to them during their suspension, such as an employee assistance program. Remember—they are still your employee and are consequently still eligible for all workplace benefits.
In some circumstances, suspending the employee may be more detrimental to the investigation or business than allowing them to continue working. For example, if the employee is the only keyholder in a retail business—and a second cannot be appointed—suspending them would mean the business had to close.
Equally, you might choose not to suspend the employee if there are serious concerns for the employee’s wellbeing or if you feel it is unreasonable to suspend the employee. For example, if the employee is in the middle of taking workplace exams, it would be unreasonable to suspend them halfway through the exam period. If you choose not to suspend the employee, you should document the reasons for this and include them in your investigation.
Appoint your managers
When appointing managers for the investigation and disciplinary process, you will need to instate:
- An Investigatory Manager: The investigatory manager will conduct the initial investigation. They will collect any evidence relevant to the case, for example, by conducting witness interviews or collecting CCTV evidence where necessary. The investigatory manager will also plan the investigation process, gather the collected evidence, and write an investigation report.
The investigatory manager should be senior to the person being investigated, and should not be that person’s line manager. They may be the HR manager or a line manager depending on the structure of your business.
- A Disciplinary Manager: The disciplinary manager will conduct the disciplinary hearing once the investigation has been concluded. The disciplinary manager will review the evidence collected by the investigatory manager and read the investigation report to help them make their decision. The disciplinary manager will decide what sanction the employee will receive, up to and including firing the employee from the company. The disciplinary manager should be at the same level of seniority as the investigatory manager and may be the investigated employee’s line manager.
- An Appeal Manager: You may require an appeal manager to review the investigation and disciplinary procedure should the employee appeal against the disciplinary manager’s decision. The appeal manager will need to be more senior than the investigatory and disciplinary manager and will have the final say over the outcome of the disciplinary procedure.
The appeal manager will review both the investigatory manager’s initial investigation and the disciplinary manager’s decision-making process when making their own decision. There is no further internal right to appeal once the appeal manager has made their decision. However, the employee may appeal to an employment tribunal should they feel the decision is still unfair.
If you work in a small business or a more lateral business structure, you may find it difficult to find three separate managers to be involved in the investigation and disciplinary process. If this is the case, the investigatory manager can also conduct the disciplinary hearing. However, if the matter goes to appeal you will need a more senior manager, so it’s best to bear this in mind when appointing the investigatory/disciplinary manager.
When instating these managers, you should consider the following:
Has the manager been trained to undertake a fair investigation process? Do they understand the importance of undertaking a fair investigation? A manager from your HR department is usually the most qualified to undertake an impartial investigation. You should also train other managers on the process where possible.
Two different managers, the investigating manager and the disciplinary manager, must be involved in collecting evidence and conducting the disciplinary hearing to ensure a fair process for the employee. Both should be impartial to the employee and allegations. In a lateral business structure or a small business, you may struggle to find two managers who are trained in conducting disciplinary hearings and investigations respectively. However, you should try to keep the two processes separate for impartiality where possible.
Typically, more senior managers will investigate more serious misconduct allegations. However, you need to ensure that the disciplinary and investigatory managers are of an equal or similar level in the work hierarchy, and that there is a manager above them who would be able to hear the disciplinary appeal. Don’t go straight to your most senior managers to undertake an investigation because if the matter does go to appeal, you may struggle to find someone to hear it.
Attention to detail
Investigations include lots of evidence, and selecting a manager with high attention to detail will ensure you get the most out of each piece of information. Select a manager who’s detail-oriented and thorough to ensure you don’t have to retrace your steps or re-interview to get the right level of detail.
It’s important to remember that the point of an investigation isn’t to prove guilt or punish. It’s to find out what happened. The investigating manager may be privy to sensitive information during the process, especially in bullying or sexual harassment cases. So, it’s essential that the manager handles the case with a high level of sensitivity and empathy for all involved.
Plan the investigation
In an investigation, working backward can be helpful. Consider what you are trying to find out and what information you would need to do that.
Planning an investigation might include deciding which employees you need to interview and which documents you will need to gather. Depending on the nature of the allegations, you may need support from other departments, such as IT, HR, or finance. You should also speak to the employee being investigated to understand their side of the story.
Remember: you are not trying to prove guilt; you’re trying to gain a balanced understanding of what happened.
Interview employees and collect data.
If you are acting as the investigatory manager and you have planned your investigation, it is time to collect your evidence.
Start scheduling interviews with any witnesses. Ask them what they recall of the event, whether anyone else was there, or any other questions related to the case. You may want to engage your HR department to act as note-takers so you can refer to anything discussed at a later date.
You may also need access to emails, instant messages, or phone logs that IT can support. You may also use CCTV evidence or website history, depending on the nature of the case. The extent of the evidence collected will depend on the scale of the investigation.
For minor matters, you likely only need two or three corroborating statements. However, in cases of gross misconduct, you will need more evidence to ensure a strong case to support dismissal.
Workplace Investigation Interview Tips
Your tone should be neutral and as relaxed as possible during the interviews. Offer the employee regular breaks and place a glass of water on their desk before the interview begins. You should avoid asking leading questions.
For example, instead of asking, “You saw the employee steal the money, didn’t you?” ask, “Did you see the employee steal the money?”. Once the interview is over, take a few minutes to collect your thoughts and thank the employee for participating.
There are many questions you could ask during the investigation process. They should be open-ended questions specifically related to the incident. You may find it useful to ask:
- Please describe what happened in as much detail as possible.
- Were there any other witnesses to the event?
- How has this behavior affected you?
- How has this behavior affected your job?
You may also ask the complainant (and only the complainant) what action they think the company should take. This can help you to gauge how severe the complainant believes the action is and how much it has affected them. Once you reach the disciplinary stage, you may like to ask the employee being investigated this question in order to gauge whether they understand the severity of the matter.
Once you have completed all your interviews and collected the data you need, it is time to analyze the information before you conclude.
Do the interviews you conducted corroborate one another? Is there any CCTV showing the alleged misconduct? What hard evidence have you collected, or is it all circumstantial?
You should consider all sides of the argument and whether there was any bias involved in the investigation from those you interviewed or those supporting it. Consider the personal motivations of the interviewees and how credible they are as witnesses.
Did their story change throughout the interview? Did they show any personal bias toward the suspended employee? This will reduce their credibility and may weaken your investigation.
Create a report.
Based on the available information, you should collate a report of all the evidence you have collected and write a short statement drawing your conclusions. In the report, you should discuss the potential legal risks of taking action and suggest what you think should happen.
Update the suspended employee to let them know the investigation has been concluded and that their case will be handed over to the disciplinary manager. You should also inform the initial complainant that you have completed the investigation. Let them know your findings while respecting the privacy of the suspended employee and offer any pastoral support you feel the complainant may need.
When going through an investigation process, your employees have legal and other rights.
The right to confidentiality
You should only discuss the investigation with employees and managers that need to know to maintain confidentiality. Gossip spreads quickly in an office environment, so you should conduct your investigation with sensitivity to ensure the employee being investigated is not the subject of workplace rumors. Remember, the employee may not have done anything wrong.
The right to be accompanied
The employee being investigated’s right to be accompanied differs based on your industry’s sector.
Public Sector: Usually, public sector employees have the right to representation at investigation meetings. This may be a trade union representative, a colleague, or a legal representative depending on the nature of the investigation.
Private Sector: The employee does not have a right to be accompanied at most investigation interviews in the private sector. However, suppose the likely outcome of the investigation is a disciplinary hearing leading to dismissal. In that case, allowing the employee to be accompanied by a union representative or a trusted colleague is good practice.
If the employee has any learning difficulty or processing disorder, you may consider allowing them to bring a friend or family member. If you work in an industry where dismissal for gross misconduct may mean the end of an employee’s career, e.g., in medical professions, you may consider allowing them to bring a legal representative to support them.
It is against the law for anyone in the business to retaliate against an employee for making a complaint.
Retaliation could be overt, for example, trying to rally other employees against the complainant, or it could be discreet, for example, withholding the employee from promotional opportunities after their complaint or scheduling them for fewer shifts. This could constitute a hostile work environment and be a disciplinary offense. A robust policy that clearly outlines the employer’s stance on retaliation will help minimize this.
Frequently Asked Questions
Do employees have to take part in an investigation?
Not participating in an investigation may be considered a disciplinary offense under serious insubordination.
You may find that employees withhold information if they do not want to see a popular team member punished. Remember to stress to employees that an investigation does not always lead to disciplinary action and is essential in safeguarding employees.
What do I do if I feel the investigation isn’t being conducted in a fair way?
If you suspect that the investigatory manager is not investigating a fair way, you can report these suspicions to their line manager or use the whistleblowing hotline your business provides to report any wrongdoings.
How long does an investigation take?
There is no set time frame for how long an investigation should take. However, they should be completed as quickly as possible without rushing and reducing the quality of work.
Workplace investigations need to be thoroughly outlined in your disciplinary policy, as this is an important step in the disciplinary procedure. You may face challenging decisions when conducting an investigation, especially if they significantly impact your business or workforce.
However, it’s important to remember that investigations make the workplace a fairer and safer place to be, and you should conduct a fair investigation accordingly.