What is an HR investigation and when is it needed?
Sometimes employees in the workplace can make accusations against fellow colleagues or an employee’s conduct may be deemed inappropriate by managers; in these instances, as part of the process to resolve conduct concerns, the employer needs to carry out an investigation. In simple terms, an investigation is a fact-finding exercise, so that decisions can be made and appropriate action(s) recommended. For an investigation process to be fair, it is vital there are no biased perceptions involved in the process and the correct process is followed to avoid any risk to the business.
Should HR investigate all claims and if not, why?
There is currently no legislation on who should carry out an investigation, however, to ensure the investigation is fair, the investigating officer should be completely impartial in the matter and not be the employee’s line manager where possible. The investigator could be from HR; however, this is not usual practise unless it is a highly sensitive/complex issue, in which no one is trained or has the experience necessary to carry it out, (or if the organisation is small). If a member of the HR team does carry out the investigation, then a senior HR team member should be available to support in case the process proceeds to a disciplinary hearing. HR usually provide advice to investigating officers on legal questions, the risk to the business and ensuring a fair process is being carried out. At times organisations may appoint external HR consultants to conduct investigations if no one is deemed appropriate internally.
What makes a good HR Investigator?
Whilst investigators should be impartial, they should also have other qualities to ensure a thorough investigation can be conducted.
Knowledge – Investigators must have a good understanding of the company, policies, and processes to understand how the conduct of the individual has been breached. They should ensure they have a good understanding of the role the individual carries out and how this contributes to the work of others in the company and the standards expected from this role.
Communication – The investigator should be able to communicate their questions clearly and ask further questions to get as much information and fill in any gaps. Once questions have been asked and responses were given, it is always good practice for the investigator to give an overview of what the individual has advised so far in the meeting and the individual should confirm what the investigator has acknowledged as correct or advise further. This is helpful to acknowledge and pick up on any inadequacies. Investigators must ensure they are listening to the individual and not just relying on the notes of the meeting.
Approachable – Investigation meetings can be very nerve-racking experiences for some individuals. To get as much detail from the meeting the investigator needs to be aware of their own personality, emotions and body language and that of the person being investigated. As the investigating officer, you need to remain impartial and not let any of your opinions and emotions of the situation that arose come through in your questions or tone of voice, you need to remain approachable so that the individual feels comfortable to talk to you in an honest manner and not withhold any information.
Some individuals can also be very emotional and sensitive about the information they have to disclose. Investigators need to acknowledge their emotional state and give them time to gather their thoughts and answer the question or take a break. It’s always useful to have a box of tissues in the room! Once the individual feels comfortable to talk they will be more willing to give information.
Experienced – Investigation officers should be experienced in conducting these meetings, especially if allegations are of high risk and likely to impact the company and employability status of the individual. Investigators should be able to piece information together and be critical of practices by both the individual and business so that problems are not only resolved but also changes are recommended and implemented to prevent future issues from arising. Investigators need to ensure they have enough facts gathered for a balanced view from both sides and ensure all information is kept confidential.
What is the investigation process?
When an employer receives a grievance or concerns about an individual’s conduct, they should act in accordance to company policies and practices and source advice from their HR team. It is important to:
- Consider the information of the complaint/concern initially available to you- do you need to obtain statements in writing? do you need to consider alternative duties or suspension?
- Decide who is the appropriate individual to investigate – consider who would be impartial and has the training/experience, do they have the time to investigate within given timescales and will they be proactive.
- Planning the investigation – Consider the information already received, what other documents need to be reviewed in relation to this, who does the investigating officer need to meet with and in what order, plan the logistics of the investigation meetings and prepare questions before the meeting as a guide.
- Collect data and carry out the meetings with the individual and witnesses – CCTV, emails, documents and minutes of meetings.
- Analyse the information and make your recommendations – this may include outcomes for the individual being investigated, the complainant, witnesses, and any decisions that may impact the whole company, such as a change in policy or ways of working.
- Write a report on the investigations outlining the allegation, details of staff involved, methods used to investigate and gather facts, conclusions, recommendations (informal, formal, no action) and risks to the business.
The employee being investigated should be advised that they are under investigation and the reasons for this, who is investigating, timescales, the importance to keep the information confidential and next steps. Investigations are stressful for all employees involved, employers should consider support for wellbeing and mental health.
Investigations need to be fair and objective, it is best to gather as many facts as possible to ensure a well-balanced investigation. Investigations should be conducted within a reasonable timescale, so facts can be obtained. A reasonable timescale will ensure all parties involved do not forget any key points, leave the business or information will longer be available. Its important to remember to communicate with the employee, especially if there are going to be delays on the timescale originally advised.
Companions in an Investigation Meeting?
At the investigation stage, employers do not have to offer employees the option to be accompanied, this is something employees are entitled to in a disciplinary hearing or grievance hearing. Some employers will allow companions at the investigation stage for good practice or because they are considering the wellbeing of the employee. The companion is usually a work colleague or a trade union representative. Under discrimination law, disabled employees should be allowed to be supported in investigation meetings, for example by their Support Worker.
Companions can address the meeting on behalf of the employee, but they should not answer questions that are directly asked by the employer to the employee nor should they obstruct the employee from speaking.
Witnesses and their role in the investigation
If someone is present when an incident has taken place, they can be asked to provide a statement and if required be invited to an investigation meeting as a witness. Witnesses should be advised that their statements and any information they give in meetings will be shared with other people helping to investigate and the individual being investigated will have the right to see the information the witness has provided if the investigation proceeds to a disciplinary hearing.
Questions to ask a witness:
- Dates, times and locations of incidents they witnessed or heard
- Details of what they witnessed, who was present at the time, their proximity to the incident
- Did they report the incident or previous incidents/concerns?
- Did they get involved in any way – challenge, help, or generally comment in passing
- What was their understanding of the incident – why had the incident occurred or why was it inappropriate?
Witnesses should be given a copy of the notes of the meeting for their records and be advised to keep details of the conversation confidential to avoid jeopardizing the investigation.
Questions to ask the individual being investigated:
- Can you talk through the events that took place on Monday?
- What was your involvement in these events?
- Was anyone else present when this took place?
- Are you aware of the company policies and procedures in regard to ‘customer services’ – how do your actions from Monday relate to these?
- Have you ever raised concerns about these things in the past?
- Do you think you could have acted differently?
- How does your behaviour during this event, align with the company code of conduct/ethos/vision?
The interviewer must be impartial and not let prior experiences impact the questioning process with the employee being investigated and the witnesses. Keep questions open-ended to give the employee time to talk:
- Keep the focus of the questions on the allegation and ask questions in a chronological timeline of events.
- Remain impartial and ensure questions are not directed towards employees as though you believe they are guilty.
- Ask if there are any witnesses and tangible evidence.
- If the employee denies the allegation; ask why others would be motivated to make the allegation.
A few tips on how to conduct a HR investigation well
To investigate adequately, you need to ensure that the investigation officer is:
- Fair, objective and confident, and experienced in carrying out investigations
- Ensure the company procedure is being followed and training has been provided to all staff who carry out investigations
- Information is kept confidential
- Investigation is thorough in looking at all information available – CCTV may only be available for a month before it is deleted and therefore you need to be proactive.
- Timescales need to be considered as investigations need to be seen as a priority, not only for gathering data but also consider the impact it has on the individual being investigated.
- Consider if any of the employees involved in any way are leaving, do you need to meet with them as soon as possible as they may not be available to meet after they have left the company.
- Delay in investigating can mean that individuals forget key details or it may come across to employees that the matter is not important and the company is too laid back in challenging their employees.
- Communicate with the individual under investigation, ensure they are informed of all allegations, timescales and any delays in the process.
- Ability to challenge policies and ask tough questions.
- Not to accuse the individual or assume guilt throughout the process.