During our recent webinar on Handling Workplace Investigations, we received several questions via the chat facility that we will address in a number of blogs over the next few weeks.
First off, we have some questions about who should carry out a workplace investigation.
If your policy states that a different manager will do the investigation versus the disciplinary/grievance hearing, should you follow that?
As a general rule, yes.
The first thing to say is that you should always seek to comply with your own policies and procedures unless there is a good reason for not doing so. Although a failure to comply will not in itself automatically render any subsequent decision unfair, a Tribunal will take such matters into consideration when considering the fairness of the overall process. If the policy is contractual (which we would generally advise against), a failure to comply could also give an employee grounds to claim breach of contract.
Leaving aside your policy, the Acas Code of Practice on Disciplinary and Grievance Procedures makes it clear that when it comes to misconduct cases, where practicable, different people should carry out the investigation and disciplinary hearing. This is to help ensure the process is objective and reduce the scope for allegations of bias and impartiality through the perception of being both prosecution and judge. Acas’s separate Guidance on Conducting Workplace Investigations also recommends that a different person should handle each stage of the process.
For grievances, there is no strict requirement for the person who is hearing the grievance to be someone other than the person investigating the grievance. The Acas Code and its separate guidance on conducting workplace investigations say that where a grievance has been raised, the roles of investigator and decision-maker may be combined. This is because in many cases, matters raised in a grievance may be resolved more satisfactorily if the person investigating the issue also hears the grievance. In light of this, you may wish to tweak your policy to give yourself more flexibility when dealing with grievances. In some circumstances it may however still be appropriate to designate different roles to different people, e.g. if you are keen to demonstrate impartiality.
Ultimately the question at law is whether your choices of investigator and decision-maker are outside the range of reasonable responses. What your policy says is relevant to that but not determinative. If you have a decent reason to depart from it – perhaps resolving the issue involves technical expertise which only one person has, or you have run out of head-room in your company hierarchy – then you can. It is much more important to keep someone aside to hear any appeal than that there is a split of responsibilities at a lower stage.
Is there a requirement for the investigator to be in the same country as the complainant, e.g. can a complaint in the UK be investigated by a specialist in Ireland?
There is no legal requirement (subject to anything stated in your policies) for an investigator to be in the same country as the complainant. Although this is usually what happens we also recognise that some companies operate a global team of investigators and these managers may be called upon to investigate matters outside their home jurisdiction as part of their remit.
If companies adopt this approach they need to ensure that any investigators are familiar with local legislation and relevant guidance governing workplace investigations. In England and Wales, for example, an investigator should be familiar with the Acas Code and separate guidance as well as what an Employment Tribunal would expect to see when assessing the fairness of any workplace investigation. Proper training is essential to minimise the scope for slip-ups.
Care also needs to be taken to ensure that the passage of witness evidence and relevant documents between countries does not infringe any data protection laws, and it may well be desirable to provide the parties to the grievance being investigated with some express reassurance around the measures that will be taken to protect their personal data.
It will also depend to a certain extent on what is being investigated. In some circumstances, for example, it may be necessary to have someone in the same jurisdiction as the complainant if face-to-face meetings are appropriate or a reasonable investigation requires physical review of something – a workspace or some other equipment or circumstances within it. Equally, if witnesses need to be interviewed, language barriers may mean it is not appropriate to have an investigator from outside the jurisdiction, at least not without their checking with the witness that the record of what they said was accurate.
Does the investigator need to be the same gender as the complainant when investigating sexual harassment?
Again, there is no requirement (subject to anything in your own policies – and we would generally caution against this) for an investigator to be the same gender (or race or religion or orientation, etc.) as the complainant. The protected characteristics of the investigator are less important than their being seen to have had appropriate training (both in investigations and in equal opportunities matters), their overall professional credibility and their not having any prior involvement in the matter, where possible.
If a complainant requests someone of the same gender (e.g. because they say they would feel more comfortable opening up to an investigator of the same gender), this is something that you should consider when appointing an investigator, but you should avoid deliberately seeking an investigator of the same gender as the complainant as a matter of course, as this may lead to the risk of a discrimination claim by the person accused. As per our recently updated Relatively Informal Guide to Workplace Investigations, just as that protected characteristic might lead the accuser to feel that this will make a decision in their favour more likely, it may also lead to the accused to fear the opposite. As soon as that person is reassured that the gender of the investigator will not make any difference to the outcome, the obvious question becomes why the employer felt it necessary to pick them for the role if that is the case.
Accordingly, your choice of an investigator should so far as possible be on objective grounds, such as technical expertise, lack of relationship with any of the parties involved, existing training or experience, familiarity with the working environment, and so on. If the investigator and decision-maker are different people, the same applies to both. Ideally, you might aim for one of them to share some protected characteristic with the complainant, but never to the extent of selecting them on that ground in priority to perceived competence for the role.
For a more detailed look at workplace investigations, take a look at our recently updated Relatively Informal Guide to Workplace Investigations.
