Workplace investigations are increasingly making their way into public consciousness. This is in part due to a greater focus by organisations on carrying out investigations, not simply to address wrongdoing but also as part of a cultural shift towards accountability and transparency. It is also thanks to a recent, very public workplace investigation – namely, the Sue Gray investigation.
Anecdotally, when discussing the Sue Gray report, it becomes quickly apparent that people generally have an instinctive sense for what seems appropriate and fair in an investigation, and what does not. Indeed, that instinct that onlookers seem to have is part of why investigations need not only to be fair and appropriately independent, but also need to be seen to be so.
Bearing that in mind, this seems a good time for us to look at how to set up a robust investigation - one that will not only achieve its aims but also be credible and give confidence to participants and onlookers that it has been done properly.
Who should commission the investigation?
In the context of the Sue Gray investigation, the Prime Minister was the one to ask the Cabinet Secretary (initially) to carry out the investigation. It is unclear what level of input he might have had on the terms of reference.
We have seen examples of senior leaders facing allegations who, often in a very well-meaning way, swiftly launch an investigation. However, where they have been too involved in setting the terms of reference, this can have the effect of skewing the investigation before it even starts. Of course in a normal workplace the subject of an investigation would not have the right to set the terms of the investigation.
It is undoubtedly challenging when allegations are levelled at the most senior leaders to manage this initial stage. The fact that an investigation is being commissioned at all in those circumstances is positive, but how to avoid “tainting” the investigation from the start?
Ideally and where possible the minutiae of setting the terms of reference should be managed by someone else – for example, the HR Director, possibly in conjunction with the appointed investigator.
Who should investigate?
Not every investigation will require a completely independent, external investigator. However, when allegations are raised at a very senior level it is difficult to see a credible alternative.
Sue Gray had the unenviable task of investigating her boss. She may have felt entirely able to be robust and unswayed by that, but even if she was, there will always be questions from onlookers as to the extent to which she might have faced external pressure (or felt her own internal pressure due to her position) in a way that might have influenced her approach.
For example, the Sue Gray terms of reference included an expectation that “If required, the investigations will establish whether individual disciplinary action is warranted”. However, the report itself then says, “The matter of what disciplinary action should now take place is outside of the scope of this report and is for others to consider. Nothing set out in this report can be taken as constituting a disciplinary investigation or findings of fact appropriate for such a purpose.”
There seems to have been an element of “ducking” the issue. Was that because the terms of reference were too vague in the first place as to who would be responsible for “establishing” whether disciplinary action is warranted, or might it have been driven by a sense of discomfort on the investigator’s part about straying into that territory, bearing in mind her position and the position of others? We will never know, but this brings us back to the question of appearances, which are as important to the credibility of an investigation as the conduct of the investigation itself.
Having a more junior member of staff investigate their senior simply does not look good and, in practice, is probably unlikely to produce the quality of investigation you would hope to see.
What do you want the investigator to do?
On the topic of vague terms of reference, a key factor in establishing a robust and credible investigation is to ensure that there are clear terms of reference which set out precisely the scope of the investigation, what the investigator will have access to and what is expected from the investigator.
Poor terms of reference can have a “garbage in garbage out” effect on an investigation. Given that the investigation forms the bedrock for every action and decision to follow, the costs of getting it wrong (both financial and otherwise) can be significant.
It is also important to be clear on where the lines need to be drawn (or on how decisions on where to draw lines should be taken). An investigator could, if left to their own devices, look under every stone and behind every rock. However, this will not necessarily be proportionate, and having a framework for knowing where to draw the line is helpful. This is another reason why senior leaders who are the subject of an investigation should not be involved, where possible, in setting the terms of reference – it is unhelpful if it appears to onlookers as though the investigation has been scoped, or lines have been drawn, in a deliberate or cynical way to limit the extent of the investigation. It might also affect the quality of the evidence given if the witnesses feel the senior leader is too involved and employees can worry that the senior leader will find out the detail of what they say.
What outcome is expected from the investigation?
Do you want the investigator simply to undertake a fact-finding investigation? Or should they make recommendations? As discussed above, this will depend in part on what you expect will happen next. If, for example, the purpose of the report is to determine whether disciplinary action should be taken, it may be that a fact-finding report is all you want, with a view to a disciplinary hearing manager convening a hearing and considering the report alongside any other evidence raised as part of that process. Sometimes a pure fact-finding report is challenging, because there may be circumstances in which the investigator is faced with a “he said, she said” situation. In this case, the investigator would be helpfully empowered to give a view (if this is possible based on the evidence) on the balance of probabilities as to which version of events is more likely to be true.
The output of the investigation will also be important to determine up front. Will the investigator provide a detailed written report appending all interview notes and other evidence collected? Or is the purpose of the investigation more general, such that it may be sufficient to report back to the Board in person along with a written summary of findings?
In this article, we have focused on investigations which are intended to be “open” (ie capable of being shared and disclosed as appropriate). In some cases, it may be appropriate to consider whether an investigation should be legally privileged, in which case advice should be taken early on as to how to structure the investigation (and, indeed, whether it is possible in the circumstances for it to be privileged, as there are limits).
What happens next?
The Sue Gray report made clear that it would be for “others to consider” whether disciplinary action should be taken. The terms of reference did not make clear who might take those decisions, although it specified that “any specific HR action against individuals will remain confidential”.
An investigation report does not exist in isolation – it needs to be received by someone, considered and action taken where appropriate. Where allegations are levelled against senior leaders, careful thought needs to be given to will be the recipient of the investigation report and vested with the decision-making powers for next steps.
Often the need for an investigation arises at a point where everyone rushes to panic stations, and there can be a temptation to launch straight into the investigation. Doing so can come at a real cost if this means that time is not taken to consider the issues outlined above and put in place the foundations for a robust and credible investigation.
With special thanks to Helen Apostolides (summer vacation candidate) for assisting with this article.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, July 2022