Welcome to this Mills & Reeve employment podcast. My name is Jameel Mann. I'm a principal associate in the employment and the investigations team, and I'm joined today by Neil Pugh, who is an employment investigation specialist in the investigations team. We're going talk today about some of the common pitfalls that we see employers fall into when conducting workplace investigations, and we're going to give you our top five tips to avoid.
So we're going to start with avoiding the prove guilt and innocent trap that investigating officers often fall into when they conduct a workplace investigation. Neil, I know you've conducted quite a number of investigations and written many reports. Where do you see as being the key traps that investigators tend to fall into in this scenario?
Yeah. I think often with some of the people that you're speaking to and dealing with, they're expecting you to come to some sort of outcome, determine guilt, make decisions as to who has or hasn't done something, and that's kind of not what we're there to do. Our job is to be independent, to carry out a fact-finding investigation, and to present those facts back in a clear and balanced manner for other people to then take that information forward and make decisions.
We go as far to say that there is or isn't a case to answer based on the facts that have been identified in that investigation, but I'm not going to be going any way beyond that, and I'm also not going to be using any sort of hearsay or rumour, speculation. Any information that's not been presented as fact as part of my investigation will not be used as part of my report, and that can sometimes be misunderstood by some people, either within the investigation themselves or when you're giving reports back.
So that's probably a fairly big thing to begin with. Yeah. I think a lot of the time as well, when I look at investigation reports, particularly when the matter gets to tribunal, and you look at some of the language that's used, and you feel that actually the employer's not done a bad job at investigating the allegations, but then they've really fallen down with the language that they've used in the report where they've effectively made decisions.
And then when it goes to the hearing officer, effectively then all they're really doing is rubber-stamping it. It's not really their decision in the first instance. Yeah. So the employee can try and call that part at the tribunal process. So I think it's really important that the investigating officer's absolutely clear on what their role is, and that they are effectively carrying out a factual assessment, and at the end of it identifying whether or not there's a case to answer.
That language aspect that you mentioned there is quite important. I think that you have to... It's really important to remove any of your own opinion or wording that maybe implies there's some op- opinion in the way you're presenting those facts. Because even if it isn't your own opinion, the use of some words can make it feel that way.
So that's really key. Absolutely. Well, the next one we've got is around failing to scope the investigation. And whenever I conduct an investigation, the first thing I would do is create a really clear, detailed investigation plan so I understand exactly what the allegations are that I'm looking at. Where I'm going and what the potential evidence might be, who I might want to be speaking to, and that's like a fluid document, so I'll continually review that and update it.
But failing to scope things out at the outset can really cause problems, and we often see that with clients when they're conducting investigations. Just wonder what your sort of observations were on that. Yeah, I think that where this leads to, if you're not really clear at the start, is that scope creep that happens quite a lot.
You can sort of end up going down all sorts of rabbit holes in terms of other aspects of the investigation if you're not really clear at the outset as to what it is or isn't that you're investigating. So that kind of needs to be set. I think it's important to have some sort of terms of reference as well that everybody is aware of from the outset in terms of when that investigation comes across to an investigator.
But then I think that document needs to be reviewed as you go through because the situation can change. There can be additional witnesses that have been identified, a document that needs to be... Yeah, you go back to it quite regularly, check it, make sure that you are still on track, and if there is any changes, if there is things that need to be further investigated, that probably needs to be a conscious decision, not just going off and doing it yourself.
You need to make sure that that is something that should fall under or does fall under the scope of the investigation. And I find that, you know, there is always a tendency for investigations to grow arms and legs, and sometimes that investigation can then fall into the scope of an area where the investigating officer doesn't have expertise.
It could be a safeguarding issue, for example And having that scope, as you say, the terms of reference and referring back to those can make sure that the investigating officer doesn't go off track. And if new issues do arise, then if you have those terms of reference and you scope it properly, the investigating officer should then know who to speak to, to say, "Okay, if this has come up-what do you want to do about it, and how should it be addressed?" I also find that when you do have a properly scoped investigation at the start and you've got clear terms of reference, I find quite useful to go back to when I'm doing the report- and make sure I've actually ticked everything off, and I've addressed all the issues that the employer wants to be addressed.
So I think it's absolutely critical that you do scoping right from the outset. The third pitfall that we've identified, and this one comes up in pretty much every investigation you can see, is around timescales. You know, given investigating processes can be stressful for all those involved, it's understandable there's going to be pressure placed to ensure the investigation's completed as quickly as possible.
However, issues can arise internally where timescales are promised to individuals, for example, particularly if somebody's accused of allegations and then those timescales aren't delivered. What kind of issues have you seen created where timescales have been promised and just not been delivered on? Yeah, I mean, I don't think I would ever give an estimate on how long I think an investigation's going to take because almost without fail, it probably takes longer than you think it's going to.
And there's so many aspects of an investigation which are out of your control. So even if you plan everything beforehand in terms of dates where you want to speak to potential witnesses, you know exactly who you want to speak to, you set days aside for writing a report up or whatever it might be, there are still aspects that could fall into your investigation and delay you. And so making those promises is really difficult, and as soon as you say that, then that witness or whoever it may be will come back to you and say, "I was expecting it on this day. I was expecting that." It leads to a lack of trust. They may question your integrity.
They may question other things about the professionalism of your investigation. It just creates problems. People can be sick. People can be on holiday. People can have all sorts of other issues that you cannot share with all of your witnesses, so sometimes it's really difficult to tell them why there are delays.
But I think all you can ever really do is keep them updated that the investigation is ongoing. Keep regular contact with them. Make sure they have a route into you to contact you and speak to you if they need to. But yeah, promising or giving even sort of rough guidelines on time can just lead to issues, I think.
Yeah. And I think, you know, you talked about issues arising outside of your control. And I've just completed an investigation where it's absolutely critical that we spoke with some external personnel and ex-employees, and those things are outside your control. Even getting them to engage in the first instance can be difficult enough.
Yeah. But when you do get them to engage, and subject to when their availability is, they might have alternative employment, they might need to have to find evenings to, to have those meetings with you. And if you've set the timescale for the individual and they're expecting the result, as you say, that can really be quite damaging and actually cause, and you can avoid unnecessary stress by, as you say, just keeping that person involved.
I think that's absolutely key. And the other issue I often see is where employers will appoint personnel internally because they might have the skill set to conduct that investigation, but they may not actually be the right person to do it in that space because They might have holidays planned, their workload might mean that they can't conduct it in a reasonable period.
So I think there's a number of factors there that can often contribute to an investigation being prolonged. And most important thing is to make sure it's done as quickly as possible. But the only way you do that is by making sure that the personnel that you're appointing has the capability to do it in the first instance. I think that sometimes you do want it to be done quickly, but it needs to be done right.
Rushing a witness because you know you need to get a report done tomorrow is not going to be the way you're going to get the best evidence from that witness. So you need to make sure they're in their best place to be able to provide you with good evidence and good information. You know, always a black-and-white situation of like, you know, "This is what I'm going to do."
There are often quite a lot of questions that they're going to have, and you're going to get the best evidence from them when they're most comfortable with you, and you just don't know that at the start. My view is I would rather it takes a day, two days longer, and I get the right result than rushing it and then potentially leading to issues further down the line because you didn't do a fair investigation, a thorough investigation.
So there's a balance between getting it done expeditiously and getting good evidence. Okay, so the next pitfall we've got is around handling the issue of confidentiality, communication generally with an investigation. I think this is an area that clients sometimes feel quite nervous about. They don't know what they can and can't say to witnesses.
Sometimes they might say the wrong thing, and then that will cause problems maybe down the line. Confidentiality and sort of anonymity is sometimes spoken about when people request it, and I think that communications with witnesses and people involved in the investigation is really important, so they know what the process is.
If that investigation means that I'm going to take a report from somebody, or take a statement from somebody, or have a conversation with them, they need to know where that's going to go. What is that going to be used for? I'm going to be using that summary as part of my investigation report to a certain individual who's then going to be making decisions.
Let them know that that could then lead to internal disciplinary processes. In theory, it could lead to external processes. I think it's really important to let people know that information, so they know what it is they're lending themselves into. Now, what also people are really wary of is sharing personal information, and are they going to find out that I've made this allegation?
I think all those sorts of things are on a case by case. Sometimes it's going to be impossible not to share certain aspects of somebody's allegation because they're the only person that may know it, and for us to investigate that, you have to raise that with other witnesses. So again, highlighting that to the witness at an early stage and say, "Look, the nature of your concern is going to be very difficult for me to not, not necessarily identify you by name, but other people may have an idea that it relates to you." because of the nature of it, and I think that's important to tell them. I think there's times where you don't need to give specific details, and you can be very general in the way you speak to witnesses and ask them about situations, but it's not always the case, and I think that's where you need to be upfront and open and honest with your witnesses around what it could lead to.
Because the worst thing in the world is going to be them to give you all this information, not have a full understanding of where it might lead to, and then two months down the line, six months down the line Things have been shared that they didn't know and been shared with certain people that they wouldn't have given the green light to.
I think that creates more problems again. And I think that's where it's really important to make sure you've got a privacy notice in place. At the start of the meeting, you make it very clear to the individual who the information might be shared with and what might happen with that information.
They may be required to give evidence. It might be part of a disciplinary grievance process, whatever it might be, so that the individual then understands what's going to be happening with their data. And I always adopt investigations on the basis of sort of treating it as a little bit on a need-to-know basis as well.
Yeah. So if it's, you know, the meeting that I'm having, you know, saying that, you know, I'm investigating some issues that have arisen, I'd like to ask you some questions, or, you know, some allegations have arisen, I'd like to discuss these with you. The individual doesn't necessarily need to be told what those allegations are in full.
They'll also try and push to understand them ahead of the meeting. I'll often say, "Well, I'll discuss them with you," because I don't want them to be given the heads-up as to the issues and sort of the type of questions that we're going to be asking them. Particularly when you're having grievances raised.
Another common issue is that individuals are being told that there's been a grievance raised and that they're following this particular grievance process, when you don't even need to tell individuals their grievance has been raised to fully investigate it. Right. So what we're talking about here is making sure that you don't fall down at the final hurdle in relation to an investigatory report.
Of course, a report, a full report, a short-form report even, is not always necessary. Sometimes the outcome of investigation can be the collation of the data, the witness evidence, documents, etc. But I think it's quite helpful, and certainly would advise, that you have a report because it expresses the investigating officer's thought process, and that can be really helpful as the bedrock for the chair of the regular meeting to make informed decisions moving forwards.
With that report, it's very easy to get things wrong. I just wondered where you've seen reports where you feel they've sort of made avoidable mistakes that have created issues for the employee down the line. Yeah. I think going back to that point we mentioned earlier around language and the investigator giving opinion too much or suggesting what they think it shows or proves or whatever it might be.
I think again, it's not their job to do that. It's about presenting it. I think sometimes investigators can get so caught up in the investigation, that they're not making it a clear story. What you want, I think, is somebody to be able to pick up that investigation report, having known nothing about the investigation prior, and to be able to read it and understand what has gone on, what the facts are, what's being presented to them.
It should be a clear story of what has happened. And yes, there needs to be justification in there around decisions that were made, around why certain people were spoken to, and maybe why other people weren't. But still, it needs to ultimately tell the story to somebody who's reading it, so they can gather those facts and then be able to you know, use that information to make decisions moving forward.
And I think sometimes you can read reports and sometimes you don't know what you're even reading. It makes sort of little sense. Yes, it does present all the information, but not in a logical way, and I think that thinking about how best to present it for that particular case is important.
Means doing it chronologically. If it means having a timeline in there, if it means having links to certain documents because it's really important and you don't want to overload your report with data, then do that. There's not necessarily one set way to do it, but you want it to be presenting your story in a clear, structured way.
And then I think when you do that, quite often you'll notice where there's holes, you'll notice where there's issues, just because how you would if you read a story, you want answers to certain aspects of it. So I think, yeah, that clear structure is helpful. I have a structure for my reports that I follow, but there will be times where I might veer away from that a little bit or add something new in, or documents or diagrams.
But yeah, it's about getting that story across clearly, I think. And I think the other thing with the benefit of having a report is, as an investigating officer, there might be evidence that you've considered or personnel that you have considered speaking to, and you actually felt it wasn't necessary to speak to them.
So there may be gaps where you've actually felt, "I've considered this, but I didn't feel it necessary because of this," for example. I often find when you're looking at reports, sometimes the thought process isn't properly communicated. So as you say, you want to make sure that you're telling that story and you've got the facts and you've got the evidence that supports or is contrary to the allegations that you're looking at.
But also the thought process about why you decided to do certain things or didn't do certain things, I think it's really important as well. And then finally, concluding with whether there is a case to answer or not, and not actually going further than that and saying whether you believe that somebody's actually committed the allegation, for example, that you're exploring.
That's another area where I feel employers often fall down. Okay. Well, that brings us to the end of this Mills & Reeve employment podcast. Thank you for joining us, and please do follow and subscribe to this podcast if you haven't already done so. If you would like to keep the conversation going and share your thoughts, please do reach out to Neil or myself on LinkedIn or through our contact details on the Mills & Reeve website.