Workplace investigations: Top 10 tips for conducting a successful investigation

Although workplace investigations are rarely something organisations want to face, they can help to tackle isolated or systematic issues within the workplace, whether it be bullying, discrimination or harassment. It’s important for organisations to get workplace investigations right, or they risk a range of financial, legal and reputational consequences that may follow. Here, we break down our top tips for making sure an investigation is successful in achieving its aims.

1. Planning a workplace investigation

The prospect of starting an investigation can be daunting, so it’s vital to plan accordingly to make sure it goes as smoothly as possible. Before jumping in, it’s a good idea for an employer to have a tailored plan which would include determining the relevant policy under which the investigation will be carried out and what is going to happen at different stages of the process, including who needs to be involved.

2. Be open minded

It’s important for an investigator to go into an investigation without any bias regarding the people involved, or the topic the investigation relates to. They should only focus on the matter at hand and not be influenced by any preconceptions that may typically exist outside of an investigation. Going into an investigation with an open mind will help ensure impartiality in the process, allowing all perspectives to be considered in order to come to a fair and balanced outcome. 

To achieve this, it’s important for the investigator to actively listen to what is being said without trivialising or downplaying the topics being raised, as well as acknowledging the emotional toll an investigation can take on the parties involved.

3. Be impartial

Appointing an impartial investigator is an essential part of ensuring that workplace investigations are conducted in a reassuring manner for all involved, both those who are accusing and those accused. Ideally, the investigator will be someone who has no connection to any of the parties involved, and it might be an idea to hire an external party to conduct the investigation (as covered below). An investigator needs to ensure everyone involved is treated with respect and without bias. 

The impartiality of an investigation is a key consideration for Tribunals when determining employment law claims, with ACAS being clear that an investigation must be ‘fair’ and ‘objective’. 

Where employers fail to ensure impartiality, or there is a suggestion of pre-judgment, the entire process (whether a disciplinary or grievance process) can be deemed unfair.

4. Be prepared for difficult conversations

When an investigation deals with serious allegations, such as sexual harassment or whistleblowing, often the employee raising the concern may be doing so reluctantly. They may be fearful about how the employer will react, potential repercussions or whether they will be believed. 

In a similar vein, any employee who is accused of wrongdoing may be concerned that they will not have the opportunity to defend themselves, as well as what damage an accusation (whether true or not) may have on them. In addition, witnesses may be reluctant to become involved.

It is therefore important that investigators are prepared to have difficult conversations about difficult topics, which might have a significant, long-lasting impact on both the accuser and the accused.

Having these hard hitting, difficult conversations with colleagues would be challenging for most internal investigators, which is another reason why hiring an external investigator may be worthwhile given their impartiality. 

5. Take your time

An investigation can be a long, intricate process which often requires a lot of time and attention. Investigations should be conducted fairly and thoroughly, ensuring that all evidence is given due care and attention in order to come to a fair outcome. 

While it’s good to set a timescale in which you’d like to have an investigation completed, it’s essential not to rush through the process in order to keep to those timescales, as things could end up being missed or not being completed to the standard required. 

If completed internally, the amount of time it takes to complete an investigation can lead to employees having to take a significant amount of time away from their day jobs – which is also why hiring an external investigator can be advantageous. 

6. Make sure interviews are conducted correctly

The interview process is a key part of any investigation – so it’s vital they are conducted in the correct manner. Firstly, it’s important to determine who needs to be interviewed as part of the investigation process to ensure you avail yourself of all the relevant information. It is also a good idea that interviews are conducted in a discreet location, possibly away from the workplace, so it’s not obvious to employees in the organisation that an investigation is taking place. Alternatively, it is becoming more common practice to hold meetings virtually.

In terms of the interview itself, it is good practise for a note-taker to attend where possible, to ensure that the investigator can concentrate fully on the conversation with the interviewee. Notes don’t need to be a verbatim record of everything that’s been said but should be an accurate representation of the conversation, and it’s a good idea to send the notes to the interviewee after the interview is concluded to ensure they are accurate. It is becoming more common place for investigators to record interviews and to them create a transcript from the recording. Permission must always be sort from the individual being interviewed and the transcript should be checked thoroughly for errors. In addition, any recordings must be stored securely and adhere to any data protection policy employers have in place.

The person who has raised a grievance is entitled to be accompanied by a union representative or work colleague to a grievance meeting, but there is typically no legal right to be accompanied at an investigation meeting (however union agreements should be checked if applicable). The right to be accompanied to an investigation interview may be a reasonable adjustment to make if the individual being interviewed is disabled, or where they are under the age of 18. It’s also an idea to consider an interpreter in an interview where there are language barriers.

It is a good idea for the investigator to predominantly ask open questions in order to ensure all matters are covered with the interviewee. 

7. Make sure everything is documented

Documenting a workplace investigation is not only essential for legal compliance, but also for ensuring fairness and transparency, preserving evidence, and providing a factual record of events.

Documentation of an investigation should include timelines (of meetings, decisions, reasons for any delays etc), evidence (such as witness statements, emails etc), lists of participants involved at all stages of the investigation and the actions taken during the process. 

Properly documenting all aspects of an investigation demonstrates that due process has been followed, which is important for a number of reasons, especially if a matter is escalated to an Employment Tribunal by a disgruntled employee.

8. Be mindful of confidentiality

Confidentiality to the extent that it is possible is key for an investigation to succeed, and includes keeping the identities of those involved, the details of the investigation and the progress of a live investigation as confidential as possible to help ensure the process remains unbiased and that there is no interference from people not involved. Confidentiality also helps to encourage witnesses and victims to come forward, safe in the knowledge that the protection of their identity will be prioritised.

One way to help ensure confidentiality is to try and keep the size of the team of people involved in the investigation as lean as possible, which will help limit the possibility of information leaking out more widely. It’s also important to make sure information regarding the investigation is only shared with those involved through secure channels. It can be a good idea to ensure documentation is password encrypted and that passwords are only provided to those who need to view specific information. Where there are hard copies of evidence, these should be locked away in a secure place, ideally making sure no one is aware of what is being stored away. Other simple ways to ensure an investigation is conducted as confidentially as possible is to make sure all meetings are conducted privately and those involved in the investigation are aware of the people they can speak to as part of the process.

9. Consider an external party to conduct the investigation

A workplace investigation can be extremely time consuming, taking senior managers away from their day jobs for long periods of time, leading to delays and potentially exposing the organisation to unnecessary liability. One way to reduce the impact on the business, while ensuring everything is conducted in the correct way, is to hire an external party to conduct the investigation. External investigators can undertake the work on the organisations’ behalf in an impartial, independent way – utilising their expertise of the legal issues involved. Furthermore, the independent status of an external investigator may reduce the risk of litigation, show that the business is taking the matter seriously and also free up management time to focus on their day jobs. 

10. Complete a thorough investigation report

Once the investigation is concluded, the investigator should prepare a report bringing together all the evidence obtained, which aims to set out their conclusions as to whether any of the issues investigated appear to be substantiated or not. Where it is a disciplinary investigation, it will set out whether there is a disciplinary case to answer. It is important that the report does not make conclusions as to what the outcome of any disciplinary hearing should be; those decisions should be left for the disciplinary officer to make. The report may also look to set out recommendations, for example whether any remedial actions or improvements are needed. 

The investigation report should follow a structure similar to the below:

• the context and reason for investigation;
• details of the person who carried out the investigation and any previous experience they have;
• a summary of what has been investigated and who has been involved; 
• a chronology of events that have taken place during the investigation; 
• a summary of the investigation findings broken down by each allegation/ concern and a conclusion for each of those;
• as appendices to the report, attach copies of the evidence that was gathered during the investigation, but make sure consideration is given to any confidentiality or GDPR issues.

Investigations are an important part of handling workplace issues properly, but they can be stressful, extremely time-consuming and require specialist skills and experience, so it may be worth considering hiring external, impartial support to manage the process.