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Poorly handled workplace investigations lead to unfair outcomes and risk complaints against the organisation from those involved. They can also have a chilling effect on a workplace, with employees lacking confidence to come forward with concerns, matters left unresolved and staff potentially feeling unsafe. This can cause serious and long-term damage for the business. Poor investigations can also lead to the issue having to be effectively reinvestigated and can lead to organisations being challenged in the tribunal or in the press, causing reputational damage and costs.

These risks exist with any kind of workplace investigation. However, allegations of sexual or racial misconduct are always serious and often deeply personal. With the growing awareness and scrutiny around these issues, organisations tasked with responding to these kinds of complaints – across all sectors – must take extra care to ensure they do so sensitively, thoroughly and fairly, ensuring the welfare of their staff is at the fore. In our last briefing we shared our top tips for handling workplace investigations into allegations of racial or sexual misconduct. This week we are looking at common pitfalls and what steps you can take to avoid them.

Problem areas

  • Although informal resolution of complaints is often advocated, this will rarely be appropriate in cases of racial or sexual workplace misconduct. Never put a complainant in a scenario where they are expected to resolve their complaints informally and directly with the alleged perpetrator.

  • Failures in planning. Investigations which are not properly scoped and planned often go wrong and are often delayed. Project management is key, and it is critical to have a clear sense of the process that is being followed. For example, will you look at records and documents first, or meet the complainant first, or possibly the alleged perpetrator first, who may make early admissions, thus narrowing the issues to be investigated?

  • Problems also arise where interview notes are not clear and thorough. They should be agreed with the witness or digitally recorded and a transcript made available. Poor notes can lead to disputes about what was said and challenges to the process. Equally, we have seen many examples of poorly drafted investigation reports which open the business to challenge. Consult ACAS Code and Guidance and take advice on your report.

  • Terms of reference that lack flexibility. It is advisable to insert clauses into your terms of reference which give the investigation team latitude to adjust the scope of the investigation, should that become necessary. Investigations should in some ways be responsive processes that have the flexibility to respond to new information, or incorporate or remove certain allegations from the terms of reference.

  • Police and regulators. Organisations should always be alive to the fact that the underlying complaints may be criminal and/or regulatory matters in which case care must be taken when carrying out a workplace investigation. Whilst it is possible to have a parallel investigation, considerable care needs to be taken to avoid prejudicing either the investigation or the process.

  • For Workplace investigations which are being held virtually, please see our previous briefing on this: Coronavirus: Virtual workplace investigations – critical points for businesses.

Our Employment team has many years’ experience handling complex and sensitive investigations acting for employers, employees or indeed carrying out the investigation as an independent team. Our range of investigation services and work examples are contained in our investigations brochure, please see here. Please do not hesitate to contact Kathleen Heycock, Maria Strauss, or your usual contact in the team if you have any questions about investigations.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, November 2020

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