Workplace investigations: Top 10 mistakes that investigators fall into – by Dionne Dury

June 3rd, 2019

As we have previously extolled; the benefits of carrying out a robust workplace investigation cannot be underestimated. It will reduce the number of appeals and legal challenges and ensure that the employee feels that they have been listened to and heard. So here are some of the pitfalls to try and avoid when you are next carrying out an investigation!

1. Not allowing sufficient time

Investigations can take on a life of their own. I know from experience that what I think might be a straightforward matter can often change after speaking to witnesses and gathering more information. We also appreciate, that trying to find time whilst also carrying out the day job is not a simple task. At the start of an investigation (particularly if it is a complex one involving a number of allegations) it is helpful to consider the time commitment required and whether your diary allows for this and if not, look at possible alternatives e.g. can it be delegated to someone else with more capacity or outsourced to an external provider.

2. Delay

It is important to act promptly; not only can delay place your organisation at risk by falling foul of internal policies and procedures but it also causes issues with evidence as memories will fade and witnesses will have more difficulty recalling events.

3. Failing to provide terms of reference

Providing terms of reference at the outset of an investigation will frame the whole of your investigation. It is important that these clearly set out the following:

  • The allegations being investigated and whether these fall under a disciplinary or grievance procedure (or both);
  • What policy / policies you are working under and any relevant timescales / provisions within them;
  • Who is the decision maker (is it you as the investigator or are you delivering your findings and someone else is making the decision?)
    It is also helpful to agree the terms of reference with all relevant parties to an investigation.

4. Failing to plan!

As well as having your terms of reference, it is important to gather evidence at an early stage and plan ahead including gathering evidence, identifying key witnesses and preparing questions for witnesses. Early planning will enable you to identify any gaps in evidence as well as key witnesses and narrow down the people that you will need to speak to / interview. Failing to do this could mean that you end up duplicating evidence, not interviewing / missing out a key witness or evidence.

5. Interrogating witnesses

Although you may fancy yourself as the next Luther or Inspector Morse, interrogation of witnesses is proven not to be best practice as it doesn’t allow the witness to retell the story. You will also run the risk of alienating the witness, so that they don’t trust you / want to tell you their version of events. Instead; ensure that you ask open questions and use a conversational style. How witnesses are treated is important for employee relations beyond the investigation process.

6. Not listening!

The importance of listening to witnesses should not be underestimated. I am yet to find someone that can truly listen and take notes at the same time and thought should be given to using a note taker wherever possible or, recording / transcribing interviews so that you, as the investigator, can maintain eye contact and truly listen to what the witness is saying.

7. Being influenced

Emotions invariably run high during the course of disciplinary and grievance investigations as people’s feelings are laid bare and people are sharing personal information and / or fighting to save their job / reputation. Because of such high stakes people will often go to great lengths to try and influence the investigator; this might include bribery, bringing others in, using seniority as a threat etc. In such situations it is often useful to restate your role as an investigator and your remit (as outlined in your terms of reference).

8. Having an interest in the outcome

We appreciate that this is often harder for investigators who are internal to the organisation. However, the more distance from the people involved, the easier it will be to not have an interest in the outcome of the investigation.

9. Using inflammatory language in your report

Your report should set out findings of fact and the evidence you have relied upon. Avoid inflammatory language such as ‘X is a liar’ or ‘Y looked a bit shifty’! Subjectivity is moving away from the facts and offering opinion.

10. Sitting on the fence

It is an uncomfortable place that too many sit on! In disciplinary cases for conduct you only need to establish a “reasonable belief” that the person committed the offence ie. it is more likely than not and to have carried out a fair and thorough investigation . Also, in cases where it is one persons’ word against another think about asking whether each person would have responded in the way that they did if what they are is saying happened was correct. This can be helpful to determine whose version of events is more likely.

For further information about our workplace investigation services or training please see here or contact us at [email protected]n-at-work.co.uk 0117 307 1117 (England) or [email protected] 01446 760993 (Wales) to discuss.

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It’s always been an absolute pleasure to work with Dionne.  She is always professional, prompt to respond and looking for a constructive outcome in every situation.  We have greatly appreciated the work she has done for us. Working with witnesses in what can often be challenging circumstances requires a high level of emotional intelligence and skill.  Throughout Dionne managed every meeting with professionalism and sensitivity, working towards a constructive outcome for all parties.  Her communication was prompt and focussed and allowed the company to entrust her with managing a complex situation greatly enhancing the value to the business and to managers involved.  This is an incredibly challenging environment and Resolution at work and, Dionne in particular, have delivered for the company without fail. The value gained from being able to trust Dionne/Resolution at Work to manage complex casework has been immensely valuable to the organisation.  It gives an independent and professional credibility to the process and enhances the reputation of the business as a result.

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