We have outlined below some of the most frequently asked questions we come across during workplace investigations. Over a series of recent blog posts we have highlighted some of the recent case-law in this complex area and we now turn our attention to the more practical challenges out there.
Always remember no two investigations are the same and professional advice should be sought at all times.
- It has come to our attention that our line manager received a formal complaint from an employee over three months ago however nothing was done in relation to it. Is it to late to conduct a workplace investigation
Time is of the essence in any workplace investigation. Once a complaint has been received it should immediately be acknowledged in writing and acted upon and it is also prudent to meet with the party making the complaint (“the complainant”). Thereafter an investigator, whether internal or external, should be appointed and the appropriate steps followed thereafter. One of the major flaws which arise in any workplace investigation is delay. Although a significant period has elapsed, the employer in this case should take immediate steps to make contact with the complainant and an investigator appointed immediately. The complainant should be assured that the complaint is being acted upon. The person against whom the complaint has been directed (“the respondent”) should also be written to immediately informing them that a complaint has been made. The investigator will also need to note the delays in any final investigation report and the weight to be attributed thereto in reaching any conclusion. In any investigation process, all parties should be given regular updates in relation to progress and timeframes for completion, where possible, outlined in writing at the outset.
- What can we do if an employee makes a complaint but the other party refuses to take part in the investigation process?
Obviously an employer cannot force an employee to take part in an investigation process however it is prudent to meet with the respondent(s) and note their concerns. If the respondent feels that the complaint has been made vexatious or frivolously or without any basis then it should be explained to them that should such a conclusion be reached at the end of the investigation process, then the appropriate follow-up action will be considered by the employer then. Practically it should be explained to the respondent that as a complaint has been received, that an employer is legally obliged to look into this further and that if they choose not to participate, the investigator or investigation team may have no alternative but to conclude the investigation based on the information received. It should be explained to the respondent that it is their opportunity to put their “side of the story” to the investigator.
- We suspect that two employees have “orchestrated” a claim as their complaints seem identical including the wording used and the dates/times of alleged events. What can we do?
It is for the investigator to determine whether parties have orchestrated claims or whether collusion has arisen during an investigation process. The terms of reference should clearly be explained to all parties at the outset of the investigation and a copy should be furnished to all parties. If the investigator determines based on the evidence received including witness statements that collusion has arisen, the outcome based on findings of fact will need to be balanced with any other relevant issues to determine whether a complaint can or cannot be upheld.
- We are concerned that one of the witnesses in the investigation has substantially changed their statement after the initial interview. When we sent the written statement to them for signature, we noticed that large parts have been removed. What should we do?
One of the first steps which an investigator should take is to meet with the witness and find out the reasons for the changes made. This is extremely important. The investigator should determine whether any pressure has been put on the witness to change their statement or if any other parties to the investigation have been in contact with them in this regard. If this has arisen, the investigator should take appropriate steps in this regard including contacting the named parties immediately. If the witness states that upon reflection they were unable to confirm the content as correct, the investigator should equally probe this information further and conclude the weight to be attributed thereto when reaching conclusions in any final investigation report.
- At the outcome of the investigation, who determines the appropriate sanction (if any) arising from a positive finding of bullying and harassment?
In general the role of the investigator is to determine whether an alleged act did or did not occur based on the evidence proffered by all parties to the investigation. Once the investigator has concluded their final report, copies should be made available to the designated parties. Separately and independently of this an investigator generally makes a series of recommendations to the employer only by way of separate report based on the information received. The responsibility of determining what action, if any, is taken on foot of the investigators conclusions and recommendations lies with the employer.
We will continue to look at other areas challenging employers in this area over the coming weeks. If your organisation are facing any particular challenges in this area feel free to let us know!