When is appointing an external investigator a good idea?
20 June 2019
There are various times when an investigation in the workplace needs to be undertaken, such as when a formal grievance is received from an employee, where there are potential disciplinary allegations such as bullying and harassment, or where concerns have been raised over company policies and procedures.
It is generally for the employer to decide who should carry out the investigation process, including any investigatory meetings. Often, this role will be undertaken by a manager or an internal HR employee. However, there are some situations where employers may need to consider external assistance.
1. When internal investigators lack adequate time to investigate
ACAS guidance in relation to workplace investigations says that ‘a complicated matter may take several weeks to conduct properly’. Not all managers/business owners can afford or are able to take that amount of time away from the running of the business. For some seasonal businesses, during times when less staff are available finding someone available to investigate may be difficult, or in the education sector there may otherwise be a long delay for investigations to get started if an issue is raised just before the end of the summer term. Staff shortages could also result from sickness or staff being on leave.
In situations involving serious allegations, employees should not be kept on suspension for longer than is ‘reasonably necessary’, so an external investigator may prevent there being any undue delay. It would also be expensive to keep an employee on suspension for a long time if investigations were delayed, and this may jeopardise fairness and risk constructive unfair dismissal claims, particularly if a senior employee were kept on suspension for an unnecessarily long time, especially where the allegation could damage their reputation, such as in the Crawford v Suffolk case we covered in our previous article here.
2. When the matter is complex
An external investigator should be well-versed in conducting thorough investigations in complex situations, looking for evidence that supports the allegations as well as evidence that contradicts them.
When considering whether a dismissal is fair, a tribunal will consider a number of factors including whether a reasonable investigation was undertaken. ‘Reasonable’ means that there was an appropriate level of investigation and the employer obtained sufficient material upon which to form a belief that the employee had committed the misconduct in question.
Investigations are just as important when grievances are raised, as a robust investigation process will be important so that the employer can demonstrate to the employee the reasons for the outcome and show that it was taken seriously.
3. To maintain impartiality
We often see situations where senior managers are named in a complaint or are potential witnesses to an event, and these make it difficult for them to be an impartial investigator, for example if an incident took place during a staff party where all staff were present. This can mean it is best to involve an external investigator to avoid potentially compromising the fairness of the process.
Another situation which often arises is in smaller businesses where they ‘run out of people’ to deal with disciplinary and grievance issues, especially appeals. The Acas code of practice on disciplinary and grievance procedures states that ‘in misconduct cases, where practicable, different people should carry out the investigation and disciplinary hearing’ and that ‘this may not be possible in very small organisations’. Using an external investigator can help to free up senior staff for the decision-making parts of the process.
4. To benefit from outside expertise
If harassment has been alleged, an investigator with equal opportunities training would be useful, or the person handling it could be briefed by someone with this training. In other cases, someone with specialist knowledge may be helpful, for example, a finance specialist, if the allegations concern complex financial mismanagement.
5. To gain objectivity or preserve credibility
It can sometimes be helpful to have an external investigator if there have been complaints which relate to the company policies, procedures or culture, if an external investigator has knowledge of other businesses in the same industry. Where allegations concern serious misconduct against senior employees/directors/owners of the business, it may help protect the reputation of the business if a business can show that external investigators have been engaged.
6. When conducting investigations with criminal and regulatory issues
There may be times where an external investigator, such as a lawyer, can be appropriate in circumstances where potential criminal or regulatory risks are in issue. The following factors may be relevant:
- the seriousness of the allegations;
- the seniority of the individuals involved; or
- the potential for reputational damage to the business.
As we covered in our recent article, there is not normally a prohibition on an employer taking disciplinary decisions in respect of an employee before the conclusion of criminal proceedings (which can take months or years to come to trial) but nevertheless, some situations will require careful consideration as to how is best to proceed.
7. To ensure confidentiality and/or legal privilege
If the external investigator is a solicitor, then they are bound by a professional duty of confidentiality, which is reassuring when sensitive matters are being discussed. Also, depending on the circumstances, conversations and notes regarding the investigation may be protected by legal privilege, which can encourage open communication while also maintaining confidentiality around the investigation.
The team at Pure Employment Law are experienced at conducting investigations for clients, including complex and sensitive matters. More information about our services are available here. If you need an external investigator, do get in touch to find out how we can help. Please call us on 01243 836840 for a no obligation chat, or email us at [email protected].