The when, why and who of investigations. Gathering evidence and documenting it. The role of HR. The tricky issues.

1. 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”.

2. Seminar content
The when, why and who of investigations
Gathering evidence and documenting it
The role of HR
The tricky issues

3. 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

4. The impact of the investigation
Tribunal hearing
Appeal hearing
Disciplinary/grievance hearing
Investigation

5. Who should investigate?
Check your Grievance/Disciplinary Policy
Assigning appropriate individuals
Plan ahead – investigation, disciplinary hearing and appeal
External investigators?

6. 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

7. 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

8. How to investigate?
What?
When?
How?
Who?

9. 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

10. Investigatory meetings
Are they mandatory?
Right to be accompanied?
Right to notice?
Conduct of the meeting

11. 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

12. 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;

13. Case study

14. 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

15. 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?

16. The investigation report
Structure Introduction
Investigation Process
Findings
Supporting Evidence
Conclusion
Recommendations on the “balance of
probabilities”?

17. Recommendations
What
recommendations
are appropriate
• Formal action
• Informal action
• No further action
• Malicious complaints?
• Don’t prejudge outcome or sanction

18. 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

19. Any questions

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