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23 October 2015

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When disputes arise in the workplace it is vital to know how to deal with them. Having a clear and visible procedure that all staff understand can help swiftly resolve any issues

The ACAS (Advisory, Conciliation and Arbitration Service) provides free and impartial advice to employers and employees on all aspects of workplace relations and employment law.
We also offer training, conciliation and other services to help prevent or resolve workplace problems.

Workplace investigation
When is a workplace investigation necessary and why?
Incidents and issues arise in all workplaces from time to time and ensuring that they are dealt with fairly and consistently will often require an investigation to be conducted.
 The purpose of an investigation is not to prove the guilt of any party but to investigate if there is a case to answer. Common situations that may arise, which require an investigation include:

  • Receiving a grievance.
  • Allegations of bullying and harassment.
  • Potential disciplinary matters.
  • Concerns over company policies and procedures.
  • Responding to a whistleblowing incident.

A properly conducted investigation in these situations is important because it should help an employer to then make an informed decision on the matter. Making a decision without conducting a reasonable investigation can make any subsequent outcomes or actions unfair and leave an employer vulnerable to legal action.
A common concern we hear on the ACAS helpline is that conducting an investigation will be too time-consuming. Each situation is different, but most investigations can be carried out relatively quickly, focussing on what is reasonably important and relevant.
A relatively simple matter, such as an investigation into an employee’s persistent lateness, may only require a minimal amount of investigation.
A complicated matter, like an investigation into a grievance alleging bullying, may require a detailed investigation that may take several weeks to complete.

Decisions, decisions
An employer should create ‘terms of reference’ that spell out what the investigation is required to examine and to what extent. It should also make clear whether a recommendation is required from the investigator and how their findings should be presented eg, an investigation report.
Doing this gives an investigator a complete understanding of what they are being asked to do and should help to keep the investigation focused on the exact issues that need to be investigated.

Choosing an investigator
An employer will need to decide who will conduct the investigation. Wherever possible an investigator should be someone who is:

  • Not involved in the matter being investigated.
  • Independent.
  • Not involved in any subsequent decision making on the matter.
  • Trained and experienced in how to conduct investigations.

While anyone may be an investigator, the role of an investigator may typically be carried out by an appropriate line manager. However, where the matter to be investigated is very serious or complex (such as potential gross misconduct, discrimination or bullying) then it can be good practice to consider appointing someone more senior or experienced.
Small organisations, in particular, can sometimes find it difficult to appoint someone that meets criteria.
 However, an employment tribunal will take into account the size and resources of an organisation when looking at whether the investigation and subsequent steps in handling the matter were fair.
What is most important is that an investigator acts fairly and objectively.   

Should the matter be kept confidential?
An investigation may benefit from being kept confidential. It can reduce any negative impact to a party involved in the matter and help to ensure that staff morale is not unnecessarily affected.
An employer should decide whether all parties involved in the investigation are required to keep the matter confidential while the investigation is conducted.

An investigation process
Once an investigator has been appointed, planning how the investigation will be conducted should help to ensure an organised process is followed and all relevant evidence is collected to establish the facts of the matter. An investigation should typically include:

1. Check policies and procedures
An investigator should check for and collect copies of any policies and procedures that may be relevant to the matter. Even if an investigator is already aware of the policies, they should re-read them to refresh their knowledge and ensure that correct procedures are followed wherever required.

2. Identify possible sources of evidence
Many investigations will require investigative meetings and the collection of physical evidence, such as telephone records or emails.
However, there will be occasions where there is no need for investigation meetings or where there is no relevant physical evidence to collect.
When deciding what evidence may be relevant an investigator should consider:

  • The terms of reference and what they need to establish.
  • What sources of evidence may be available to establish the facts of this matter.
  • How this evidence could be collected.
  • Whether there are any time constraints for collecting the evidence, such as a witness
  • going away on annual leave or CCTV records being deleted after seven days.

An investigator should also consider in what order evidence should be collected. It will often make sense to interview the person who made the complaint or the employee under investigation first. This can help an investigator establish what facts are disputed and focus the rest of the investigation in these areas.

3. Collect evidence
Where investigation meetings are required these should be arranged and relevant parties contacted. Notes taken at a meeting will usually become the employee’s witness statement. After the meeting the employees should be given the opportunity to read and amend their witness statement. Once checked they should be asked to view the statement confirming that it is correct.
Any other written documents that may be useful to establish the facts of the matter, such as attendance sheets/records or paper copies of electronic material, should be collected and notes made on what each document shows.
Where physical evidence is collected, the investigator should document what it is, how it was collected and what it shows so that it can be referred to at the conclusion of the investigation.

4. Analyse evidence
As evidence continues to be collected, an investigator should analyse it and consider:
What does the evidence reveal
so far?
Are there any doubts over the credibility and reliability of any evidence?
Can the evidence be corroborated by any further evidence?

5. Conclusion of investigation
Once an investigator believes they have established the facts of the matter as far as reasonably possible and appropriate, they will usually need to produce an investigation report that explains their findings.
If a report is required it should include all the facts that were established, and whether there were any mitigating circumstances that also require consideration. Where a recommendation is required it should be limited to recommending formal action, informal action or no further action. It should not suggest a possible sanction or prejudge what the outcome to a grievance or disciplinary hearing will be.

Reducing problems
What steps can be taken to reduce problems with investigations arising?
Due to the reasons why an investigation is often required, allegations of unfairness are not uncommon. However, an employer can attempt to reduce the likelihood of these by:

  • Having trained investigators within the organisation. This should help to ensure that fair and thorough investigations are conducted.
  • Putting clear policies and procedures in place for an investigator to follow. This can help to ensure that a consistent and fair approach is taken and help to reduce any unnecessary anxiety.
  • Providing an experienced individual or HR contact for an investigator to contact if they have any queries. This can help to ensure that a fair process is followed.
  • Making it clear to an employee under investigation who they should contact if they have any questions – this can help make the process appear fairer to them and consequently less stressful.

Tom Neil, workplace expert on the ACAS information and guidance team.