In common with many other sectors and organisations, senior staff in schools are frequently involved in investigating issues either because of staff or pupil misconduct. Investigations may be triggered by a relatively minor transgression of the code of conduct or a more serious matter, but whatever the scenario, all school investigations should be handled with care.
Where mistakes are made in an investigation, an escalation of error can occur whereby the mistakes made earlier can come continually back to cause issues in later processes such as disciplinary processes or an exclusion for example and may generally make the process unfair and subject to legal challenge. Therefore, getting an investigation right from the start is important and there are some easy steps to take to ensure this happens.
Naturally, schools will be following their policies and procedures as well as guidance from the likes of ACAS, the EHRC or KCSIE and local safeguarding procedures where applicable to a staff or pupil issue. However, in nearly all cases, an investigation involves the following:
- An allegation or complaint is received.
- A decision is made to investigate the issue which inevitably involves appointing an investigator, setting out what precisely is being investigated, agreeing the methodology and setting a timeframe.
- Gathering evidence - interviews comprise the most part of the investigation as well as gathering and reviewing digital evidence and documents.
- Finally, analysing the evidence. School investigations are determined on the civil law burden of proof “on the balance of probabilities”. Then preparing the report for the next stage.
Within this framework, there are some fundamental points to remember to get the investigation on to the right footing and avoid the pitfalls:
Firstly, carefully assess the information that has come in. What has happened (if anything) and who is involved (known or unknown parties)? Be very clear about whether it is it potentially criminal or a safeguarding case before you embark on a school investigation and get advice if you are unsure because in these situations a third party agency would become involved in the matter. What breaches of the policy or misconduct have been identified and how was it identified or reported?
Secondly, appoint a good investigator. This could be an internal investigator or an external investigator depending on the complexity of the investigation, the skill and experience of the in-house team to do it, the number of people involved and the time and commitment needed to get the investigation done which should not be underestimated as investigations inevitably take up more time that is anticipated. Where children are being interviewed it best to appoint an investigator who is appropriately trained in interviewing children which requires a specific skillset.
Thirdly, prepare an investigation plan to define the parameters of the investigation, the resources needed, the suggested methodology for the investigator, timeframe and identify any risk areas as well as the support needs of everyone involved. In a complex and large-scale investigation perhaps involving lots of witnesses, keep the plan under regular review and update it.
Fourthly, keep records. Investigators should not simply record actions taken but also record thought processes and actions that might have been taken but were not giving reasons for this. This will help evaluate the decision-making process and can be helpful to have later as part of the paper trail into how the matter was handled.
Finally, use available resources from organisations such as ACAS to help draft the investigation report.
Inevitably in most investigations, witness evidence forms the most crucial part of the fact-finding process although relevant digital evidence can also be critically important. Good interviewers will know that in many types of case, particularly where child witnesses are involved, recall may not be linear, there may be gaps in memory and accounts can change over time. This does not mean that a witness lacks credibility and it’s the job of the investigator to get a fulsome and accurate account of what happened. This can be done by having a properly structured interview that is planned for in advance factoring in the needs of the witness together with carefully structured questioning.
The use of open questions is always recommended. A simple model that schools can use is “TED”: Tell, Explain, Describe. Questions that being with these words are called “open questions” and research shows that this style of questioning is designed to tap recall memory which is the most reliable when giving evidence. This style of questioning should provide the most comprehensive answers with fewer errors.
Investigators should be careful because child witnesses are susceptible to suggestibility which can occur through inappropriate questioning and have a “yes bias” when responding to questions. Therefore forced-choice questions (ie those where a witness is asked to give a yes or no answer) should be avoided or, at the very least, the available answers should be “yes”, “no” or “something else”.
Interviewers should avoid asking leading questions or multiple questions at the same time and should not introduce information that is not already known to the interviewee. Interviewers should always avoid negative behaviours such as showing anger, disgust, judgement and coercion as these are very destructive to information gathering.
Children are used to the adults around them being experts and knowing the answers so prefacing an interview with ground rules is recommended:
- Remember I wasn’t there so I don’t know what happened.
- Its really important we only talk about things that have happened / we promise to tell the truth.
- It’s my job to help you understand, so let me know and I’ll think of a better way to ask you.
- I don’t know what happened so it’s important to tell me if I get something wrong.
- It’s important not to guess, so say if you don’t know the answer.
Everyone should be able to give their best evidence during investigations with the minimum of distress.
- Children as young as 2 or 3 can recall and report past experiences accurately.
- The youngest child cross examined competently and credibly in UK courts was 3 years old.
- Even very young children can tell us what they know if we ask them the right questions at the right time.
Dealing with requests for confidentiality and anonymity
Its increasingly common in schools to have to deal with a request for anonymity or confidentiality. What do these concepts mean?
All school investigations should be treated as confidential processes (subject to any legal or regulatory obligations to report issues which particularly arise in the school context and the framework in relation to safeguarding and child protection or indeed where the case may warrant a report to a statutory agency if there are immediate risks to anyone’s safety and welfare) and this is especially important when dealing with allegations of harassment or sexual misconduct in a school where you must have regard to KCSIE. Confidentiality, in short, means that the identity and facts of the allegation and investigation will be kept to a “need to know basis”.
Anonymity means that the identity of the complainant and / or supporting witnesses are not revealed to those participating in the process (including the accused). This is much trickier and can have implications for the fairness of the process.
ACAS provides some clear guidance –
“only in exceptional circumstances where a witness has a genuine fear of reprisals should an investigator agree that a witness statement be anonymised.”
It is important to flag that, under the Sexual Offences Act 2003, where allegations have been made that a sexual offence has been committed, in the vast majority of cases, the person said to be the victim has by law lifetime anonymity as regards any public report of that allegation – this is automatic and unconditional and takes effect even if the police have not been told about it.
Steps to take include:
Make clear from the very outset of the process what the expectations around confidentiality are and what the consequences of breach will be (ie disciplinary steps).
The decision around confidentiality and anonymity should be made clear to the investigator and included in their terms of reference.
If you do have a duty to make a report (for example, to a regulator or statutory agency) this should be explained.
It is always helpful to make clear why confidentiality must be respected, as participants in the process may misconstrue confidentiality as an attempt to hush things up rather than an important protective measure. Gossip, rumour and speculation should always be actively managed difficult though that can be.
Thought should be given to offering those involved access to support and counselling so that they have a confidential space in which they can freely discuss the situation.
Internal and external comms should be controlled to ensure that confidential information is not shared.
Have a clear plan in place if it is decided that the circumstances do warrant anonymity (eg genuine fear of reprisals), how will interviews be conducted and notes taken and held?
Interview questioning will need to be carefully planned to ensure that relevant information can be extracted while not revealing the names of those who have been given anonymity. This is a tricky area though it is possible.
In such circumstances the value of an experienced and well briefed investigator cannot be overestimated.
All schools as employers have a duty to conduct an investigation fairly from the perspective of all parties concerned. It is important that the accused is given the full details of the complaint made against them as it will be difficult for them to fully respond without knowing who has accused them and what they are accused of.
So, at an early stage you need to:
- Ensure your investigator’s terms of reference are clear about confidentiality and anonymity. In most cases, the investigator should be instructed not to offer anonymity - but an assurance of confidentiality may be given.
If a complainant is reluctant to be named:
An investigator should explore why an employee is reluctant to be named, provide reassurance and seek to resolve concerns.
Where an investigator decides that the circumstances (genuine fear of reprisal) do warrant anonymity, the interview should be conducted and notes taken normally and subsequently redacted or parts omitted to prevent identification.
(See also page 71 of the EHRC guidance technical guidance on harassment (see here) on Confidentiality during an investigation).
- Investigations are not disciplinary hearings.
- HR are there to provide support but should not be the decision makers.
- The accused has the right to know the case against them.
- Keep good records.
- Investigations are confidential processes
Please note this content was originally published in the Spring 2022 edition of the Independent Schools’ Bursars Association (ISBA) termly magazine, “The Bursar’s Review”, and is reproduced with the kind permission of ISBA.
If you require further information about anything covered in this briefing, please contact Maria Strauss or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, June 2022