If you work in the HR profession or even in management it is inevitable that you will at some stage be required to undertake investigatory work. This can be for a wide range of reasons including: disciplinary, grievance, performance and whistleblowing issues, to name just a few examples.
How an investigation is conducted has very significant implications for both employers and individuals who undertake the investigation. An investigation that has been undertaken successfully can lead to very positive outcomes for employers, employees and those managing the process. In the alternative, an investigation that is badly managed and possibly biased can lead to seriously negative outcomes for all interested parties.
Having undertaken countless investigations during my HR career I have encountered a number of key considerations that greatly assist in terms of conducting successful investigations. These include:
1. Understand your role | The role of an investigator can easily become blurred dependent upon a whole range of variables such as the nature of the issue in hand and size of the organisation you work for or with. It is imperative that the role of the investigator is clear from the outset. Something we are frequently asked to do at Reach Higher Human Resources™ is undertake an investigation and then produce a summary of our findings. We are are also frequently asked to produce suitably detailed options summaries with appropriate recommendations. These are particularly popular with public sector and third sector organisations. We always ensure that our role and the expectations thereby placed upon us are entirely clear from the outset.
2. Policy, ACAS code or something else? | Once role parameters are clear the next port of call is to understand if there is a relevant policy in place that applies to the situation being addressed. Some companies have disciplinary, grievance, whistleblowing, absence management, performance management and other relevant policies in place. Unfortunately many companies do not and in my experiences there is a direct correlation between headcount/turnover and the interest in HR best practice. In short the lower the headcount/turnover, the less adherence there tends to be to HR best practice. Problems in this regard are only ever problems when they actually happen. But when they do materialise they can easily become an operational showstopper for the employer. HR suddenly becomes a major interest area whenever this happens.
If there is a policy in place that relates to the issue or issues being investigated does it meet or exceed the requirements of the ACAS code if this is relevant? If not does the ACAS code apply in lieu? If there is a policy is it contractual or non-contractual? If it is contractual does this relate solely to the individual in question or maybe to a collective bargaining group by means of a collective agreement? As with point one this kind of preliminary due diligence must be undertaken immediately to give the investigation the very best chance of succeeding.
3. Who are the dramatis personae? | Almost all of the legal professionals I have worked with during my career undoubtedly enjoy the theatre associated with the work they do. It is in my view easy to understand why this is the case when viewed in the context of an HR investigation. The Latin dramatis personae refers to people who feature prominently in something. For example the way in which characters in a play or film serve as the key elements of the storyline. It is in this same vein that individuals who have relevance to an HR investigation become the characters in that particular drama. When it comes to a very simple investigation the dramatis personae may be a complainant (typically an employee) and the person about whom the complaint is being made (typically the line manager, colleague etc.). In a complex investigation the dramatis personae could well be far more numerous and complex in composition. This could include a group of individuals on one side and a whole array of individuals on the other including colleagues, line managers, witnesses and other third parties.
If dramatis personae are not all included in the investigation process it immediately leaves the investigation open to accusations of bias and rightly so. A thorough investigation is likely to lead to a fair and acceptable outcome where the work of the investigator is seen as unimpeachable. Something that is very common in my experience is for some dramatis personae to try and distance themselves from the investigation, try to hide from it or for others to use their influence to try and hide them from it. This is not acceptable. A good investigation should be undertaken from the perspective of ‘all relevant stones will be overturned’. If this stance cannot be adopted by the investigator he or she is compromised and the level of legal and reputational risk becomes prohibitive. The same applies if key information is withheld from the investigator. The recent case of Liam Allan is a timely and shocking reminder of what can happen in criminal law when evidence is withheld.
4. Stick to the facts | Irrespective of the issue being investigated sticking to the facts will always be the best course of action. HR professionals are often subject to a variety of pressures during investigations that can easily influence their methodology and, therefore, what is ultimately produced. As a born and bred Yorkshireman I have never had major issues in this regard. A cultural stereotype of the county -one of the few positive ones it has to be said- is that Yorkshire folk have integrity and strength of character. This is very much a strength when it comes to investigatory work. It is not always positively received though. When working in the corporate world I had a number of experiences whereby I was tasked with conducting an investigation where a specific outcome was expected or at least anticipated. My guiding star has always been -and always will be- to focus upon what the facts tell me. The legal principle of “natural justice” states (in theory at least) that the “truth will out”. Sadly this is not always the case as the huge number of civil and criminal miscarriages of justice bear witness. But by operating from a position of integrity you can go some a long way toward ensuring that your investigation is successful.
Sticking to the facts will almost always place the investigator in an largely unimpeachable position. So long as the interpretation of the facts is fair and reasonable of course. It should also be pointed out that investigations can and often do open the proverbial can of worms. For example what started as a basic grievance may suddenly highlight a wider culture of bullying and harassment. Or a concern over a individual security matter may reveal a large corporate safeguarding issue. Take nothing for granted when undertaking an investigation and you won’t be surprised. Having consideration for broader commercial and reputational risks during the investigation is also important. Although many organisations may be unable -or unwilling- to deal with what an investigation might reveal.
5. Once your integrity has been compromised it’s time to stop | When it comes to conducting a successful HR investigation being able to demonstrate absolute integrity is of paramount importance. Ultimately you may find yourself giving evidence in an Employment Tribunal about what you did and why you did it. Any bias or inconsistencies that you failed to manage will be brought sharply in to focus at this point if you are unlucky enough to find yourself in this position. Needless to say that if this happens you will also endure avoidable stress, cost and reputational harm in to the bargain.
There are a huge number of reasons why the integrity of an investigation can be undermined: interference from interested parties, frustration of the investigation process (deliberately or inadvertently), breach of confidentiality and general lack of support to name just a few. I cannot overstate the point that if your integrity has been undermined or called in to question it is time to step away and let someone else take over. To continue under such circumstances is to plough a furrow and the matter is highly unlikely to end well. Knowing when to cut the chord is a skill that really comes only from experience.
At Reach Higher Human Resources™ we have never had to appear in the Employment Tribunal in over five years of trading as a limited company. Similarly, when working in the corporate world, I was never obliged to give evidence as either an HR investigator or decision maker. I have no doubt that this is because the work was undertaken according to HR best practice in observance of key considerations like those summarised above. I have said this in my blog previously and will say it again here. The measure of truly effective HR best practice is not how many legal processes you win or lose. The measure of truly effective HR best practice has always been -and always will be- how many legal processes are avoided out of hand. Good luck.