Conducting effective

investigations

David Poddington, Partner

Tom Draper, Associate

Rebecca Hutchinson, Trainee Legal Executive

19 May 2016

“ the material for this seminar has been prepared solely for the benefit of delegates on this seminar. It should not be relied upon for giving advice

and Taylor&Emmet LLP accept no responsibility for loss or consequential losses incurred as a result of reliance on this material”.

Seminar content

The when, why and who of investigations

Gathering evidence and documenting it

The role of HR

The tricky issues

The importance of the investigation

Do you need to investigate?

You only get one chance to get it right!

May not be any need for formal action

May resolve the matter in the employee's favour at an early stage

Ensure compliance with ACAS Code of Practice

Ensure fair dismissal/avoid breach of contract

The impact of the investigation

Tribunal hearing

Appeal hearing

Disciplinary/grievance hearing

Investigation

Who should investigate?

Check your Grievance/Disciplinary Policy

Assigning appropriate individuals

Plan ahead – investigation, disciplinary hearing and appeal

External investigators?

The role of HR

To investigate?

To advise on procedure?

To take notes?

To challenge the findings of management?

NB: Ramphal v Department for Transport, EAT, 2015 and Chhabra v

West London Mental Health NHS Trust, Supreme Court, 2013

The role of HR

HR can advise on procedure

HR can assist a case investigator in presentation of a report, for example to ensure all relevant matters properly addressed

Substance of report must be product of manager’s own investigation

HR should not involve themselves in findings of culpability with “improper influence”

HR should avoid recommendations as to the sanctions, other than advice on consistency

Note that HR/management communications may need to be disclosed!

Principles from case law

How to investigate?

What?

When?

How?

Who?

Suspension?

Do you have the right?

Is it necessary in the circumstances?

When should you suspend?

Return of property? Be careful not to prejudge

Suspend for as little time as possible

Full pay

Investigatory meetings

Are they mandatory?

Right to be accompanied?

Right to notice?

Conduct of the meeting

Note taking

What to include

• the date and place of the interview

• names of all people present

• an accurate record of the interview

• any refusal to answer a question

• the start and finish times, and details of any adjournments

• should be written without gaps, to avoid the accusation that gaps have been filled in after the meeting

• What about audio recordings?

• The notes taken do not need to record every word that is said but they

should accurately capture the key points of any discussion

Take notes, not statements

Effective questioning

The following phrases may be useful:

• In your own words…

• Tell me about

• Describe to me

• Give me an example of

• How did it make you feel?

Wherever possible ask open questions but closed and probing questions may be

used to seek clarity, if required

Try to avoid leading questions such as “would you describe Mr Bloggs as

aggressive or sarcastic?”

Check if the witness has anything else to add at the end, particularly if using a

pre planned script;

Case study

Tricky issues

Third party witnesses, e.g. customers or suppliers

Reluctant witnesses – anonymous statements are a last resort!

Employee absence

Matters involving the police

Covert surveillance or recordings

Grievances raised during the investigation

Weighing up the evidence

Identify the issues

Assess relevance of evidence to issues

Assess reliability and value of evidence

Hearsay, consistency, speculation, bias?

Demeanour and character

Any further evidence required?

The investigation report

Structure Introduction

Investigation Process

Findings

Supporting Evidence

Conclusion

Recommendations on the “balance of probabilities”?

Recommendations

What recommendations

are appropriate

• Formal action

• Informal action

• No further action

• Malicious complaints?

• Don’t prejudge outcome or sanction

What an employee should be told

before the disciplinary hearing Right to be accompanied

Copy of Disciplinary Procedure

Details of allegations

Copies of any documents/evidence employer intends to reply on at the hearing, including investigation report

Details of any witnesses who will attend at the hearing

Possible consequences

Any questions

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