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 relie d 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”.
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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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