You might be thinking about using an external provider to carry out an investigation into an employment issue that has arisen. This might be because your internal resource doesn’t have enough time, or perhaps they have been involved in the issues that need to be investigated.

Alternatively, you might not have anyone in your organisation who has the skillset to carry out the investigation if the issues are complex.

The organisations that call us in typically have a dispute that needs to be resolved. At Narrow Quay HR, we help organisations get to the root of workplace disputes by conducting complex and sensitive investigations on their behalf. We cover areas such as disciplinary allegations, employee grievances, bullying and harassment, allegations of discrimination, whistle-blowing, employee fraud, and breakdowns in trust and confidence at board level.

So What Do We Do When You Instruct Us?

The first step is for us to let you know how much we think it is going to cost. We generally tend to charge per day so once we’ve taken some initial information from you we will let you know how many days we think it will take us to conduct the investigation and provide you with an investigation report. We’ll break it down so you can see what’s involved and how the time will be spent.

Once you’ve given us the go ahead, we’ll work with you to prepare the Terms of Reference. These set out the areas that we are asked to look into. It is often the case that our clients will take legal advice about the Terms of Reference. Preparing the Terms of Reference is an important stage because it tells us what we are investigating, and sometimes what we are specifically not being asked to investigate.

For instance, sometimes an employee may have raised a previous grievance or there may have been a previous disciplinary or capability matter they were not happy about. The employer will therefore not want us to deal with that because it has already been looked into. It is sometimes the case that during the investigation other matters crop up and we will always go back to the client to establish whether they want us to also investigate those matters.

What is also usually included in the Terms of Reference is the list of the people that we have been asked to interview. We’ll look at how we carry out the interviews below but in terms of interviewees, again this is sometimes something that changes during the investigation.

I recently interviewed someone who was accused of bullying. When I interviewed them they and their union representative named 15 additional people they said I needed to interview. When that happens, we need to take a view about the best approach to take. We need to be proportionate in how we proceed, we need to weigh up the relevance of the evidence to the matters we have been asked to investigate. We also need to consider questions like ‘are we likely to get several people telling us the same thing?’ We also need to think about the effect that carrying out any additional interviews will have on the time the investigation will take.

So, We Have Received the Terms of Reference, What Next?

We will usually be sent the relevant documents, so for example in the case of an investigation into a grievance we will be sent the grievance letter and the supporting documents. It’s also important for us to review the policy under which we are carrying out the investigation. This document will for instance say whether people can be accompanied by a work colleague or trade union representative in the investigation. The basic position is that there is no right to be accompanied at an investigation meeting but sometimes, particularly with public sector employers, there is that right included in their policy.

Having read the background documents and policies, we will then set up the interviews. When dealing with a grievance, we will try to interview the complainant first as it is important to fully understand the nature of the complaint or dispute. Experience says that the complainant tends to expand on what is included in the initial documents.

When we do the interviews, we don’t tend to record them. We take notes of the interview and after the interview send them to the interviewee to check, amend and approve. It’s often the case that the people we interview will send us further documents, which we will consider and add to the documentary evidence.

When we have interviewed everyone, we will then prepare our investigation report. We will set out the key elements of the Terms of Reference, the process we followed, then analyse the evidence we have received and set out our findings, conclusions. If we have been asked to do so then we also set out our recommendations. We will add as appendices to the report the notes of the interviews we have carried out and the documentary evidence we have collected.

It’s important to remind ourselves what our role is in investigations – we are fact gathering. We don’t make any decisions, although we may make recommendations.

What Does That Mean?

In a disciplinary matter, our role is to gather all the evidence and then at most we would recommend whether, based on the evidence we have seen, that we think it would merit being heard in a disciplinary hearing. We will never make recommendations about the level of warning for instance as that would be to overstep our remit.

Our approach is to take a balanced, objective approach and set out our thought processes, refer to the key evidence and then how we have arrived at our findings and conclusions which we arrived at on the balance of probabilities.

At Narrow Quay HR, we are all former employment lawyers with over 70 years’ experience between us. We understand how employment law requires investigations to be carried out properly and that informs our approach. I have acted for a number of employers over the years in Employment Tribunals and have been doing the advocacy when Employment Judges have spent a lot of time dissecting the investigations that were carried out. I have used that experience to inform my approach when conducting the investigation.

Our aim is to make our reports speak for themselves, so that the key evidence is referred to and our findings, conclusions and recommendations are clear. What that means is that it is very unusual for us to need to attend any subsequent grievance or disciplinary hearing for example.

I hope that gives you an idea of what we do and how we do it. Of course if you need any more details please contact Simon Martin on 07384 813 076, Sarah Martin on 07799 136091, or Caitlin Anniss on 07909 683938.

Hargreaves v Manchester Grammar

Mr Hargreaves had been employed by Manchester Grammar (School) as a teacher since 1 September 2005. In March 2016 a pupil (Pupil A) alleged that Mr Hargreaves had grabbed him, pushed him against a wall and put his fingers to his throat. Prior to the allegation from Pupil A, Mr Hargreaves had not been subject to any formal disciplinary action.

As part of an investigation into the allegations, various pupils and teachers were interviewed. Two pupils corroborated Pupil A’s account and one teacher noted that Pupil A had appeared upset when reporting the incident. However, two other pupils who were interviewed had no recollection of anything unusual.  When the investigating officer interviewed the two teachers named by Mr Hargreaves as potential witnesses, one said she had not been in the area at the relevant time and the other said she had not seen anything unusual. The evidence of the pupils and teachers who had seen nothing were not presented to the disciplinary panel or Mr Hargreaves.

Following the hearing, Mr Hargreaves was dismissed for gross misconduct on 17 June 2016.

Mr Hargreaves brought a claim of unfair dismissal to the Employment Tribunal (ET) and the ET found his dismissal to be fair. Mr Hargreaves appealed to the Employment Appeal Tribunal (EAT) on the basis that, taking into account the career-changing impact of the allegation, the ET had erred in respect of the significance of the evidence gathered from those who had reported seeing nothing unusual.

Mr Hargreaves argued that if Pupil A’s allegation was true it would be highly likely that someone in the vicinity would have noticed whereas, if his account of events was true, those close by would not recall seeing anything untoward.

The Decision

The EAT dismissed the appeal, holding that it was within the band of reasonable responses for the School to decide not to put forward the evidence of the witness who had seen nothing and to dismiss Mr Hargreaves.

The EAT commented that in investigating the incident it wasn’t that the School had not pursued lines of inquiry, it was that they had found that those lines did not have anything to add. The statements given by the witnesses had been considered and the School had reasonably concluded that the evidence  was immaterial and could not assist either the Claimant or the disciplinary panel.

Best Practice

While this decision provides some comfort to employers who have properly assessed the evidence gathered during investigations and decided that some is not relevant, we would still advise that it is in an employer’s interest to present all evidence. Choosing not to do so creates an unnecessary risk of litigation and a finding of unfairness.

This approach is in accordance with the ACAS Code of Practice on disciplinary and grievance procedures, which provides that in conducting a disciplinary hearing it would normally be appropriate to enclose copies of any written evidence, which may include any witness statements, with the hearing invitation.

For more information, please contact Sarah Martin on 07799 136 091 or Caitlin Anniss on 07909 683 938 at Narrow Quay HR