Many HR professionals feel uncomfortable at the thought of running or conducting an investigation. Often there are lots of elements to consider and, of course, the very reason for the investigation could be a very serious and/or sensitive matter.
Preparing for an investigation
In this podcast (54 minutes) our Employment partners, Paul Ball and Gearalt Fahy, take a look at the key steps you can take to prepare for an investigation. Paul and Gearalt share their thoughts on what you can do in the planning stage and what needs to be considered. For example, it is important that HR teams don’t run straight into a complaint but instead carefully plan ahead to ensure they are not caught out.
Thinking about what the outcome should be is vitally important - not in terms of the final decision that is made but what needs to be documented about the process you have followed, what evidence should be obtained and what should be included in a closing report You will also need to think about what resources are needed to conduct an investigation and key considerations may need to made about preserving evidence.
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Host: So when we're planning an investigation, what are the kind of things that we should be considering?
Paul Ball: Well, there's a few things that need to be considered. First of all, you need to know what it is you're gonna be investigating. What is it about? The source of that might be a written complaint that's being received from an employee. It might be an anonymous email that's come in saying that things are going on that the business needs to be aware about. That's the starting framework.
Paul Ball: So you need to understand what's it's about. That will help you understand or should help you, perhaps, understand who are the relevant people who might be involved. Who are the people who might be ... are being complained about? Whose conduct or whose decision making has been called into question. Where do they work? What is the location like? What other things within the workplace might be relevant to the issues that are raised in this?
Paul Ball: Depending on the nature of the complaint, so for example, if you have a complaint that's raised of sexual harassment, which might frequently be raised anonymously. That's something that would suggest we might need to think about how we handle this sensitively. Bearing in mind that we don't know, for certain, who the complainant is ... Or we might know who the complainant is, but they have made it clear that they do not want their identity to be disclosed wherever possible. So you may need to think about things like how do we ensure we conduct this investigation as confidentially and as sympathetically as we can, whilst at the same time, gathering facts to establish if there's any wrongdoing for us to look into further.
Paul Ball: Some of the things, I guess, that also need to be considered at the planning stage is, what will the outcome of the investigation be? I don't mean will there be disciplinary reaction. The outcome from the investigation, for me as an employment lawyer is, what is documented about the process that you have followed to gather facts to see whether the allegation is or is not substantiated? So that will be things like witness statements or interview notes that have been prepared, correspondence that's being created during the investigation itself to show the process has been followed, any other evidence that may have been obtained. And that might be things like emails, CCTV footage, expense receipts, things like that. And then, finally, the closing report, or the investigation report, that has been prepared.
Paul Ball: At the outset I'd be thinking, "These are the things that I would expect to see at the end of this investigation into the complaint that has been raised. So, there's quite a few things that I think need to be thought about at the planning stage. And it's something that I would always advise clients if they received a complaint and they're going to investigate it, don't run straight into it. Spend a little bit of time planning what it is you need to be doing to make sure that when you go through that process from beginning to end you're less likely to be tripped up along the way and be diverted with things that can catch you by surprise.
Paul Ball: So to my mind, what that means is spend ... Even if it's the first couple of days after receipt of a complaint ... Identifying things like, who's going to do the investigation? What results are they going to need? How long may it take? Do we need to communicate with the person who has raised the complaint? What do we do with the person who is the subject of the complaint? Do we need to preserve any evidence? And things like that. All of those things are the things I would be suggesting are considered even before the investigation itself has started.
Gearalt Fahy: I was just going to add to that, Paul, that at the outset of an investigation, you really don't know an awful lot. You'll know the nature of the complaint. A complaint may have been made in writing. You may have been made aware of something that someone has done or hasn't done. So I think, to add, really, to what Paul said, and that was very comprehensive, it's really to keep an open mind at the outset, so there is a level of planning that you can do. But it's not something that people genuinely like doing. It's uncomfortable. With all of that in mind, then tribunals do understand that this is not part of, say, another man's business. It's not part of your day job. The level of scrutiny that's applied to an investigation into someone's conduct is completely different from a criminal investigation. So we're dealing with two very different situations, so that must also be born in mind.
Host: So when we go about appointing an investigator then, talk about who it should be and talk about who it shouldn't be as well.
Gearalt Fahy: I think that as much as appointing the investigator, you need to have some thought as to the next stages of the process, and I know that that might seem unusual, but the reason why I say it is because you need to have someone who is... well it can't be the same person who is going to deal with the disciplinary, and you have to have in mind that if it proceeds beyond the disciplinary and there's an appeal hearing, then again it can't be that person.
Gearalt Fahy: So usually you would look at an individual's line manager, particularly in a smaller business. Perhaps in a larger business you may want to include an added degree of independence, so you would perhaps look outside of that department business line, and someone who wasn't involved in that area of work which just adds that additional layer of independence.
Paul Ball: I think that's right, there's a difference between what will happen in most cases and what would happen in an ideal world. We realize in most cases it's whoever is available, whoever happens to be the unfortunate person who was within the line of sight of the MD when the complaint landed on their desk or something like that, and so it might end up by default being somebody who isn't necessarily the best person to do the investigation at that point in time, but in an ideal world, the kind of things you'd want is somebody who is impartial, you'd want somebody to have a sufficient degree of seniority that means any difficult characters who might be involved within the investigation who need to be interviewed don't try and pull rank. You want somebody who is not in any way potentially implicated in the issues that are being investigated. Somebody who is analytical because the role of an investigator is going to not just be to take statements, but also to analyze what's being said, analyze documentation-
Gearalt Fahy: I was just going to say that, I could even think of one particular client situation and I had worked with that client for quite a number of years, and when a situation arose and I would have a conversation with the client at the outset and we're discussing how to approach it, I could almost have a view as to who within that organization would be best to investigate that type of issue because they're particularly skilled.
Gearalt Fahy: So we're not talking about... it could be someone in HR, but in this situation, we're talking to HR about which manager within the business and in that particular case there was one individual who was fantastic at doing these investigations but it wasn't her day job. So the thing to remember when taking on the responsibility of investigating a case is that is does involve quite a degree of work.
Paul Ball: Yeah and for the time you're doing an investigation, if it's not your day job, your day job might have to be put to one side. It shouldn't be the investigation around your day job because if you do that, you might end up taking months to complete it and that creates issues of its own.
Gearalt Fahy: Absolutely right.
Paul Ball: So if you're deciding this is an issue and it could be fraud or harassment which I've already talked about, it could be that that is a serious issue, an ongoing issue or an ongoing problem. If that isn't investigated promptly, the situation gets worse and you're potentially exposing yourself to risk of complaints about your failure to conduct an investigation into the situation promptly.
Paul Ball: So it needs to be somebody who is able to delegate ongoing work or other workloads to other people, or you can take that from them. As I say, in an ideal world is what we're talking about, I realize that in many cases, the last thing the business has got time to deal with is to investigate something, and on occasion it might be sensible to think about appointing an external investigator. To an extent it's going to be an internal investigator though.
Paul Ball: It is important to remember that one of the things the investigator is gonna need to do is reach some conclusions as to whether the allegations or the complaint or the issue that has been looked into, is true or not or appears to be true. So there's going to be a need to apply some degree of analysis to what they have uncovered, and that will include, potentially being quite skilled at listening to people when they're being interviewed, not just asking questions and answer, question and answer, but being a bit more analytical about that which we can talk about in due course.
Paul Ball: And the final thing and this really shouldn't be underestimated, is ideally you want somebody who can actually write a report, and that isn't something that is necessarily as straightforward as you might think, because it's about applying a structure to it and go you've already talked about, it doesn't need to be to the standards of a criminal investigation, but nevertheless a tribunal will still expect to see some form of report on which they can understand why it was that that person who has done the investigation concluded that that issue warranted some form of further action or the decision that was taken, and that can't really easily be done without the conclusions being reduced to writing somehow.
Host: With the investigation... and you're right, we're gonna get into prepping for the interviews and things like that, at the very beginning though, you've got to identify the issues, I'm guessing. How do we do that? How do we start with that?
Paul Ball: Sometimes we involve having to extrapolate or identify from a rambling tirade, what it is, what specifics a person might be raising as a complaint and that might not be that easy.
Paul Ball: I was recently advising a client, was doing an investigation and it was a relatively brief complaint of about four or five pages, but it went all over the place for him and it wasn't chronological, it didn't talk about a complaint against this person is X, Y, Z, or the complaint related to this and then the next incident was this, the next incident was this, it was a whole splurging out of random thoughts, and it can be quite difficult.
Gearalt Fahy: I think that's right and the thing that immediately sprung to mind for me was a tribunal that I was dealing with recently, where even the advocate in that case was struggling to simply put the issues to the tribunal, and the judge in that case sent the advocate away twice to come back with the issues and in the end the judge took a hold of it and came up with the five issues and said are these the issues or are they not the issues? And I think that there's an important lesson that can be learnt from that in that Paul is right, and you can have a complaint that could be four pages, it could be four lines or it could be forty pages. And the key really is to identify the list of those, numbering them is helpful, and then at the outset of any investigatory meeting with the individual and certainly at a disciplinary, it's about going through those points and saying are these the issues?
Paul Ball: Something that could be helpful is... and this will often be something that a human resources professional will do at the outset as part of thinking who might be a relevant person to look into this? Might be almost cross-referencing this complaint with the list of policies and procedures or the things that are in the staff handbook, so you might have a list, for example, in the disciplinary procedure of examples of behavior that might class as gross misconduct, and it could be breach of the expenses procedure, theft, fraud, fighting, racist or abusive language or something along those lines, and just using those headlines of the basis to say okay well is there anything in this complaint that seems to fall within any one or more of those, and then labeling each one that's racist or offensive language or something like that, number one.
Paul Ball: One that looks like it's about abuse of power at the number two, and then trying to extrapolate from them the date that these might have happened or the person who might be the accused. And there's no precise science to this to be honest, it's simply trying to use what's in front of you to try and cut through the trees to see what the wood is that you're having to look at.
Paul Ball: Now in the example I gave just a few minutes ago, the one that was a four-page complaint that was rambling everywhere, I probably spent about half an hour going through that and I then identified eight specific issues, discussed that with the client and that really helped them focus what they were going to be doing in the investigation because they were going to fence data otherwise asking questions about the entire employment history of the person who had been accused and the person who was raising the complaint, and they didn't need to do that because the issues were actually quite discrete.
Paul Ball: So it was almost, going back to what I said before about planning and spending time planning, spend time going through and trying to identify from the issue or the complaint that's been brought to your attention, what general issue is this about. Is this about misconduct by an employee? Is it about organizational misconduct? If it's misconduct by an employee, who is the person who is accused? What type of misbehavior have they been accused of? What specific examples does the complaint raise that I know specifically will have to be included within the complaint? Who might I need to speak to as part of that?
Paul Ball: So that's all sort of getting more clarity around what might be the scope of the issues that you're gonna do within this investigation.
Host: You mentioned the fact that it's not an exact science doing this. When it comes to documenting it, is there a policy? Is there a ruling? Or is it best practice that you need to be following when you're doing that?
Paul Ball: To answer the question briefly, no there isn't any hard and fast rule so each organization can determine what it's going to do and many organizations won't have a standard approach to dealing with grievances or they will just have a grieving procedure that says this is broadly how they will deal with these things. And it's right not to be too rigid, there needs to be some flexibility. It's about what is reasonable for the business and it's size, it's resources and the nature of the complaint. But if you're dealing with something that is a formal complaint, the document and the investigation, from my perspective, is making sure that you can show that having received the complaint, you can document that you've taken action to look into that, you can document that you have reviewed the behaviors of people complained about or you have reviewed other evidence and tried to obtain other evidence that allows you to say on balance, and it is only on balance whether the allegation or allegations appear to be substantiated or not, and then highly you can document how you've pulled all of that together.
Paul Ball: That really is just partial to evidence that you have carried out a reasonable investigation and you've conducted it in a reasonable manner. I say the word reasonable there deliberately because that's really the benchmark in a subsequent employment tribunal. At that stage of a process, have you acted in a manner that would be expected of an employer of your size and your resources, have you acted in a reasonable manner, broadly?
Gearalt Fahy: I think that's right, and specifically in terms of documenting, we're talking about witness statements, we're talking about interviewing relevant individuals, taking a note of what they say and what they can say in response to a particular allegation or a particular issue, and having that documented. I've seen it done in many different ways, sometimes very comprehensively, sometimes less so. You may have someone who would simply write an email, to send an email to say what they know about a particular issue. So I don't think that... I know that tribunals aren't precious in terms of what that needs to look like and that it necessarily be signed and things like that. The more that you do that, of course, the better, but the important point is that you're getting to the nub of the issue.
Paul Ball: Yeah so a tribunal for example, wouldn't expect a business who has got five or ten employees to have a really thoroughly documented process with eyewitness statements, a detailed written report, etc. That would be the standard expected of an employer that size, would be significantly lower than a multinational with several thousand employees in umpteen different departments and things like that. It's about the courses and putting the clock according to your needs.
Paul Ball: It is important to bear in mind and we've said this before and no doubt we'll be saying it again, it's not about a police standard investigation, it's what is reasonable to the circumstances of the case to identify if there's an issue that needs to go forward. If it's an disciplinary issue, or not.
Gearalt Fahy: And that even goes to the language that's used in a statement. For example, if a particular witness provides their own statement of a kind as to how it's put and the phraseology, really doesn't matter, and I think I've certainly seen that in the past where people get maybe a little too hung up on the form. What's more important is the substance.
Host: You mentioned it doesn't have to be a police standard investigation. Is that the same when it comes to identifying and gathering evidence as part of the investigation?
Gearalt Fahy: When we talk about a police investigation, what we're really eluding to is the difference in the standard of proof. So in a criminal investigation, what the court is looking at is whether or not something can be proven beyond all reasonable doubt. So we've all watched TV, we've all seen the movies, that's at one end of the scale. You then have the civil standard which is on the balance of probabilities. If for example we're looking at a case of misconduct, we're talking about something which is notionally lower than on the balance of probabilities. It's about having a reasonable belief, and whether or not the tribunal being satisfied that a reasonable employer would have dismissed or taken the action that the employer had done in those circumstances.
Gearalt Fahy: All it takes is one reasonable employer. So the standard is actually quite low, that's what I would say on that, Paul.
Paul Ball: I do know that some employers will say well we record, we tape record all of our interviews as a matter of course, is that the right or the wrong thing to do? The answer is there is no right or wrong thing to do, it's important that you are accurately noting the information that is uncovered from an interview and of course if you do record it you will get warts and all. I think if you are recording it, my concern is that the person who is being interviewed might clam up a little bit because they know that every single word they're saying and how they're saying it is going to be there for posterity, and so I wonder if they're necessarily going to be as open. But if you haven't got the resources to have a note taker with you, if you're interviewing somebody and trying to take your own notes and I know this from doing eyewitness statements on cases, that actually is quite a torturous and stilted process.
Paul Ball: If you haven't got the resources to have somebody else there to take notes when you're interviewing people, then recording is absolutely fine, but you don't just keep the audio file. That is something that would then need to be typed up and I'd also then suggest having typed those up, the person who is being interviewed has the opportunity to review those and check they're happy that it's a full reflection of their recollection of events, not that they say it's accurate statement of what they said, because it will be, but is there anything else that they didn't say that perhaps would have been relevant to those issues?
Gearalt Fahy: In my experience, the recording of interviews makes it harder not easier.
Paul Ball: Yeah I agree.
Gearalt Fahy: The further down the line that you go because you're then dealing with, as you say, you're dealing with transcripts and you end up with a rambling, which discussions often can be, and really the note of an interview with an individual doesn't need to be verbatim. It doesn't need to include every single word, it's dealing with the key points. It's one of those where perhaps less is more.
Paul Ball: Yeah, the recording bit, I'm always saying to my clients only if you have no choice would you think about doing that. My preferred route all times is have somebody else there to be a note taker, and the role of the note taker is actually quite important. They can actually assist you as the investigator, not worrying about whether the recording is still working or in the old days when it was a tape, have you gone over the... have you turned the tape over twice or something like that, which I have seen happen. I've seen that happen in the past. Having a note taker there is much my preferred route.
Paul Ball: But then again, the note taker needs to be somebody who understands things like confidentiality, is skilled at taking notes, and knows what the role of the note taker is, and that's often where HR come in, isn't it? In an investigation. So the HR administrator or HR business partner may typically be the person who supports line management in conducting the investigation, but specifically in terms of being a note taker during any interviews that take place.
Host: Well let's do that, because we've kind of jumped into the interviews. I just want to talk a little bit first about how you prepare for those, and preparing for these interviews, what should we be doing? How do we approach this?
Gearalt Fahy: Well we come back to the identification of the issues. So taking time to understand what the issues are. We've talked already about really trying to put together a list of what the issues are which may come from quite a rambling complaint. That's a very useful starting point, and the time spent there will be well served when it comes to the actual preparation for the interview, because you will know what the issue is, you will know who it is that you're speaking to, and you will want to really have in mind the... some open questions that you want to ask of the individual. I think the most important thing is that you don't approach any of those discussions with a closed mind, and it seems obvious to say, but if you go in looking for a particular response, then you're going to try to elicit that response. It needs to be very much open, active listening, and you may well uncover something that perhaps you weren't rather than going into it with the preconceived notion of what happened.
Paul Ball: That's absolutely right, and on top of that, as part of the reparation that I've done, if I've done investigations for clients, we've talked before about identifying the scope of the investigation and the issues being investigated, sometimes what I've done is almost prepare a table, having highlighted what the headline issues are and making sure I've got a list of those down one column, and then identifying my other complainant name and the name of the relevant witnesses, and looking from the complaint, do I think that this witness is somebody who I think may be in present or is being told at what is present at that particular example or the thing that was complained about. Making sure that that's something that I'm going to be questioning that person about.
Paul Ball: So applying a focus I guess, to the areas that I'm going to be speaking to each relevant person about, and not speaking to everybody about everything that's in the complaint because that might unnecessarily broaden out the investigation, and also may make keeping confidentiality a little bit more difficult than it otherwise would be.
Paul Ball: So I do that to help frame what subject areas I'm going to speak with people about, absolutely what Gerrol said about starting with an open mind and asking open questions and then using that as a basis to get the individual to explain to me what their recollection of events is, is also part of my preparation. A third thing that springs to mind, is making sure that I'm familiar with any other evidence that I have been able to obtain before the interview itself has taken place, that may be relevant to discuss with that person at an appropriate time in the interview. Not that I've come armed with a list of papers that I'm going to make sure I put this in front of them and ask them that particular question about that document, but knowing that I've got something to hand that is of relevance as of when it comes to the point in the interview where I need to ask them to confirm or explain further what that document is actually telling me.
Gearalt Fahy: The only thing I would add to that is it's a good thing to come away from an interview with other points to investigate. So although it seems counterintuitive to come away with more questions than answers, it's the sign that you're thinking of things in the right way, so what you're trying to do is get to the bottom of something, and if that means going away and speaking to additional people or checking X, Y and Z records then that's absolutely what you should do.
Gearalt Fahy: I like your idea, Paul, of some sort of table. I think the more basic... a more basic and a simpler way to do it is perhaps just simply to pre-prepare some notes and some questions. Broad areas, highlighted questions to ask which will give you the focus rather than, I suppose the worst thing you could do is go in unprepared.
Paul Ball: The flip side of that and the same problem can arise if you're over prepared in terms of I'm going to ask this person all of these questions. You've talked about open questions, and if you just start with a list of pre-prepared questions, you run the risk of simply asking that question, answer, asking the next question, answer, and then just ticking through, I asked them all the questions I need to ask, nothing further. But actually, that would suggest you've not necessarily been listening to what the person has been saying to you. So you ask an open question, the idea is you then use the information the individual has given you in response to delve for more detail. That's part of active listening.
Paul Ball: That's using the information that they are giving you as a basis to probe further and to try to get to the nub of what their recollection is, and the way I try to describe it to clients is you want to leave an interview or when you've finished with that particular person, going back to what you were saying before, G, about potentially going away with further inquiries, but once you have completed your investigation, you would want to be able to say okay, witness X, I can now paint a really clear picture of what their recollection of that particular event is. I can imagine myself in their shoes and explaining what it is that they recollected that they saw.
Paul Ball: Now if you have a list of questions and you simply go that question, that question, that question, that question, that question, done, you run the risk very easily of missing all of the opportunity to do that. And we've both seen investigations from clients, usually after when a claim has arisen because they've made a decision to dismiss, and a claim has arisen, we've seen investigations from clients and we think why didn't you ask that question? That witness didn't answer that particular question, and part of it is because it's an inexperienced investigator, simply wanting to get to the end of the interview. They'll ask all the questions on the list, nothing further to ask.
Paul Ball: So it's an easy mistake to fall into, to almost over prepare as well.
Host: Is that a risk you potentially run by getting somebody external in that they are going to over-prepare because they don't have that familiarity with what it is they're investigating?
Paul Ball: It's a good question I think. It's a risk you do run but you try to overcome that obviously by making sure... going back to what we've been talking about, planning the investigation. At the planning stage, making sure that you help fill in that external investigator with as much information as you can about who the relevant people are, the culture of the organization, the size of the organization, the nature of previous complaints it may have had, and things like that. But it also, I think, it suggests that there needs to be some level of internal involvement to help handhold that external person. Whether that's through not taking or at least say you come back to me after you have spoken to that particular person and let me know what they're saying and I'll suggest if there's anything further you might need to be doing. It's something you can try and overcome.
Paul Ball: But yes, you're right. It is something that is a potential difficulty that can arise with using an external investigation, but a good investigator or an experienced HR person, typically will be able to overcome those quite easily I would have thought.
Gearalt Fahy: Agreed.
Host:Following the interview, you've spoken to one of your witnesses, one of the people you've got in. Is there anything that is expected that you're supposed to be doing after the interview, is there any follow-up points?
Paul Ball: Well I think one thing that is really important to emphasize is about confidentiality. I know you've got your own thoughts on what you might say on this but for my part, confidentiality is quite important that you emphasize that at the end of the interview, everything that we've shared with you today and any information that you have given us needs to stay within these four walls, and I have been tasked with investigating this particular issue and it's really important that you don't speak with any others, because doing so might make it difficult for me to get to the nub of what's going on.
Paul Ball: Equally, that happening could run the risk of some form of reprisal or retaliation occurring against the person who has spoken up and if that happens, we have a zero-tolerance approach to that. We wouldn't want you to unwittingly get into a situation where you are being investigated for breaching confidentiality and that has led to somebody facing retaliation. At the end of any interview, I would be making sure that that is something that is said as a priority.
Paul Ball: After the interview, you'd then be writing to the individual. If you're going to provide them with a copy of the notes for them to confirm that they think that they're accurate, if it's the person who has raised the complaint, to confirm with them what your next actions are going to be, and I'd include a little bit in that follow up email or follow up letter that talks about remember what I said about confidentiality, it's really important that you abide by that and I can't really stress that enough.
Paul Ball: And that's particularly important to be dealing with things like discrimination, harassment type allegations where it's a person complaining about the behavior of somebody else directly towards them.
Paul Ball: So confidentiality is one point that I think I overemphasize it, but I think it's really important to stress that. What are your thoughts, G?
Gearalt Fahy: I don't disagree. I think in essence, if you are approaching an investigation in the way that you ought to then you're not approaching it with a view to getting to a point where something is proven. The phrase that's used is innocent until proven guilty, and with all of that in mind, if there are loose lips and there are discussions and murmurings that are going on in the background then it's certainly not going to help in any investigation because you must prepare on the basis that this individual may not be guilty of the thing that you think they're guilty of, and if this gets out into the workplace domain and it may make it difficult for them to return to work. But in a smaller company, that's almost impossible to avoid, isn't it?
Paul Ball: Yeah it can be, and that's one of the challenges that might arise, if there's lots of rumors going on around the investigation, either the person who has raised the complaint or the person who is accused might think well I can't stay here because my life is going to be made hell because everyone knows I've spoken up or everyone knows I've been accused. It's difficult for an employer to actually stop that reaction, but what they can do is document they've taken reasonable steps to limit the likelihood of that arising and they've made it clear to employees that they should try to keep things to themselves and keep things confidential. It's the way of minimizing the risk of a resignation and a constructive dismissal from a legal perspective, but from a best practice perspective, if you were put in the shoes of the person who is being accused or the person who is raising the issue, and it's not an easy thing to do to raise a formal complaint-
Gearalt Fahy: Or to be the recipient of.
Paul Ball: Exactly right, you would want to know that you are being given a fair opportunity to state your case and to have that looked into without everybody else whispering behind your back about so and so's done this, look at them or stay away from them. You just wouldn't want that to happen. You can't stop it but you can take reasonable steps to make it less likely that it happens.
Gearalt Fahy: I think to just come back onto your point, I think there's a difference between the fact of there being an issue so if you use a small employer example, the fact that there has been an incident is probably known. That's not so much the issue, the issue is more what is said specifically by people when interviewed. So when we talk about confidentiality, it's not the fact that you've been interviewed, it's more what you've said and what you now know as a result of having been interviewed, because the other bit is, as you say, it's out there. It's more the specifics.
Host: With the investigation, and this is something you touched on a little bit earlier, you're gonna get evidence, whether it's written, whether it's in the interviews, that is conflicting and people are going to say they did this, I didn't, they said this, no I didn't. How do you go about analyzing and evaluating that kind of evidence you get?
Gearalt Fahy: I mean conflicts in evidence are... it's what we deal with as lawyers, day in day out. I think it comes back to the standard of proof because we don't... and I think it's a trap that particularly small employers fall into is which they can't prove something. They can't prove that somebody did something. Well, the fact that you can't prove that they did it is irrelevant because that's a standard. That's not the standard that you need to reach. You need to be satisfied that on balance you believe something happened or didn't happen. If there's a conflict between what the person who has been accused has said and what say two other witnesses have said, then at it's most basic, who are you inclined to believe? Because you could quite rightly take the view that well, the person who is being accused would say that, whereas you've got two individuals who've got nothing to gain on the face of it by saying this, they've provided accounts which are consistent or broadly consistent and so you're entitled to prefer what they say as opposed to what the individual themselves has said.
Paul Ball: I think that's right, I think one of the skills is to be able to apply labels to which evidence is stronger and which is weaker. There's no hard and fast rule on this, because each case will turn on its own facts and what evidence is presented, but there are some principles I can give, which is contemplating these documents, CCTV footage. Yes okay you talk about fake news in the media and things like that, but at face value, things like that generally will be credible. CCTV footage will be harder to doctor that. An email trail will be some evidence of exactly what was that was or was not said within that, likewise everything you read receipts and things of that nature they carry a lot of weight so if you have for an example of somebody saying accused of expenses irregularities and I didn't put in a receipt for £400 at such and such restaurant, got the receipt here. So they've got persons denial against the receipt, against persons credit card, what looks stronger?
Paul Ball: Often the evaluation though, is between conflicting evidence between people and as you say G, that there it can often be down to well as the person got a reason to be saying what they're saying which is inconsistent with what you're saying?
Paul Ball: I can't think of an investigation I've seen or been involved in where there hasn't been conflict between the evidence of people, and I've said well they're only saying this because I'm concerned about their performance, or because they think they're trying to get back at me because I gave them a poor appraisal rating or they think they're the top of the list for potential redundancies coming up so they're doing this as a defensive measure.
Paul Ball: And the flip side of those things as well, which is they've been pestering me for a date and I said no and they're reacting in this particular... You get these kind of responses all the time. So you have to decide which is more credible and corroborated evidence, which are people who have no apparent axe to grind so witnesses rather than the accused or the accuser, whose evidence and recollection of events appears to be credible. And this goes back to asking questions when you doing the interviews, it's not just listening to what the person said but then probing for detail. I said before you want to be able to step into that person's shoes and have their sort of clear color picture on what it is that they say happened on those.
Paul Ball: A witness that can say yeah I recall that, it was in the canteen. I was sitting with so and so, we were having lunch and then I saw right by the till 2 people, X and Y, having an argument and then one of them walked away, got a spoon and smack the other person on the head with it. And I remember that really vividly because I remember turning to so and so and say can you believe that, so and so? Then they explain it in that kind of way and probably using the… my voice has gone a bit animated for example, pretending I've seen this thing. But when you're interviewing them, it's like that.
Paul Ball: You as the investigator or entitled to say when that person was telling me what they saw they were incredibly credible. There were credible because they were detailed and what they said to me I could understand exactly what it was that they were saying to me. And I can pair that with the person who's accused of doing it saying no I didn't do that at all and a blanket denial. So the level of quality of the detail you are getting, again at face value, is something you can take into account in deciding who do I believe?
Gearalt Fahy: The way that I explain it, again is really with the end of the process in mind. So this is an employment lawyer speaking, but when you get to tribunal, the panel know nothing of the case. They picked up the papers that morning and they are listening to the evidence of something that happened in a business on a particular given day at lunchtime in the canteen, to kind of pick up on your point, Paul. When preparing evidence, I think as a lawyer when preparing evidence, the most important thing to think of is can you see this happening? Can you get a picture of this actually playing out? And does the evidence support that? Because very often that's where your answer lies. And if you can't picture that, why can't you picture that? And if you can't, then it may be that this didn't happen or it did happen but it happened in a different way, are they may be mitigating circumstances.
Gearalt Fahy: It's a useful lesson when looking at an investigation, as an investigator, try to picture what went on in the canteen on that day, and if you have a blank and you can't quite see what happened then you need to ask some questions.
Paul Ball: Or do some further digging around, it might be that there is CCTV footage, cameras in the canteen. Or there might be clocking in records that show whether that employee who was saying that they saw this incident was at work that day, and things like that. There's a variety of things that you as an investigator can do to say well there's a gap there but there might be something else that I can identify that helps me tick that box off to know that that has been established.
Paul Ball: A common one for example this where somebody says I didn't know what I was doing was wrong, and then you can find training records, recent training records that show them attending a course specifically about how to deal with expense claims and things of that nature. So that's when we're talking about evaluating evidence, well it's not just about what people are saying, it is thinking about other evidence that might be there that helps you fill in the blanks.
Host: But what do you do then if you've done the interviews, you've looked at the evidence in front of you, and we find ourselves in a situation where the investigation is in the balance? What do we do then?
Paul Ball: I think that if you think you can reach a conclusion that each allegation is definitely substantiated or not substantiated, you're kidding yourself. I would have thought that in at least 50% of matters investigated, you can't reach a firm conclusion one way or the other and if you want to do that, it's literally a finger in the wind to see where the truth lies.
Paul Ball: As long as you have done, as an investigator, thinking of ourselves in the role of investigators at this point, as long as you think you've done what you reasonably can, if there is conflicting evidence, and you genuinely can't reach view one-way, you are better off saying I genuinely can't say this did or didn't happen, there is so much evidence in the balance. However, I think they'll be cases where you can see even if that is the case, I favor this person or a favor this version of events for the following reasons, and it might be based on my knowledge of how that earlier works based on the things that other people have said to me, based on their demeanor in interviews, based on some of the other evidence I've obtained, we tend to suggest that more likely than not this happened, but I stress that I haven't been able to reach a more definitive you than that.
Gearalt Fahy: And you don't have to, you certainly shouldn't have a firm view at this stage, that would be quite natural, because although we are coming towards the end of the investigation stage, we have an ongoing disciplinary investigation because it won't stop the investigation stage, because that the preliminary stage before you have the main event, which is the disciplinary hearing itself. Because very often, what will come out of a disciplinary investigation is further investigation because another set of eyes will look at the investigation, will listen to what the accused who said in response to what someone else has said and you may have to go back, re-interview, you may have to go back and look at other individuals, other witnesses, other evidence. It's an ongoing process. You don't have to tie it up with a nice neat bow at the end of the investigation and present a case for dismissal.
Paul Ball: I've seen many reports were, decent reports where an investigation was concluded, I can't say for certain that this did or didn't happen but there is enough information on the basis of the complaints and what the complement also then told me during the interview, that gives me a reason to believe something may have happened. My role is the investigator is to try and establish the facts, and established them the best that I can. I think this is something that does warrant being considered by somebody more senior than me in a disciplinary contact, in other words it's almost passing the book over to the disciplinary manager to decide whether actually the evidence that I as the investigator have obtained, justifies then going ahead with a decision that the person who is accused is guilty of misconduct, or is not being guilty of misconduct.
Paul Ball: There's many disciplinary hearings that will go ahead on the basis of an incomplete investigation or an investigation that hasn't been able to stay on balance, this is definitely occurred. And that's not wrong, that's not necessarily wrong.
Gearalt Fahy: No it's not wrong, and similar considerations apply to a grievance or a complaint that's made, conclusions don't have to be reached. At the early stage, what you're doing is facilitating the ongoing investigation.
Paul Ball: It's about establishing the facts to the reasonable extent you can.
Host: I think it's worth just clarifying that, and talking a little bit more about the report that comes at the end of the investigation. It doesn't have to, your final investigation doesn't have to be this firm decision one way or the other?
Paul Ball: I think it comes back to understanding at the outset, what the scope of your particular investigation is, and what the remit of the investigator is. The starting point is the investigator is there to establish the facts, not there to say that having done so this person is guilty of this, and it should go ahead to the disciplinary hearing, because that would suggest that the outcome of the disciplinary hearing has been predetermined, and it's not that person's role. It's about establishing the facts, and making recommendations that that could be I recommend there appears to be a disciplinary case to answer and it should proceed to a disciplinary hearing to consider the following allegations one, two, three. And there might be some wider recommendations, it appears that there is a training issue here, lack of supervision, it appears that there is a culture that has been allowed to develop which is not conducive to people, minorities, women, whatever the case may be, and trying to identify what improvements but this may be able to meet to ensure that that doesn't necessarily happen in the future.
Paul Ball: I would always be reluctant to advise an investigator that you should definitely say that this is gross misconduct. It is not the role of the investigator to pass that level of judgment, it's simply to gather the facts, plus facts together in a structured way and I've got a suggestion about how that looks which I can talk about in a few minutes, and then make some recommendations to what the next stage might be not will be.
Host: When it comes to preparing the report, are there any tips on how it should go together?
Paul Ball: There's no right or wrong way of doing it, but I apply a sort of structure to it which is not just what it is that you have concluded, but almost going through and documenting that the process that you were followed to reach that particular conclusion.
Paul Ball: There's perhaps seven points I was pick up, and it's not often that I would say something I'd be specific on that. You'd want to do the background, so what it is in the introduction. What it is that you've been asked to investigate. I can put on a chronology, timeline of complaints, complaints being raised, what issues are the subject of the complaint and then a brief timeline of the investigation itself. Might say that a few words about how it is the investigation took place, who was spoken with, what other investigation... Sorry, what evidence was obtained and then I'd go into and describe, in a little bit of detail, what the complaint was. And that may simply be a case of listing the allegations in the complaint itself, or paraphrasing them in a way that it reflects the type of misconduct or behavior that has been complained about. Then the meat of it, is what your findings are. So what evidence is obtained, and I think this is really important and it sometimes, tell me if you disagree on this, G, but the findings isn't just the findings for the allegations, it's witness X said so and so, on the other hand, three or for other people said this. So in relation to each of the particular allegations, the evidence is all the facts you obtained, that suggests one thing or the other. And I put both, because then the next bit of it, is to pull together the conclusions, which are the two versions you believe and why? From balance I think that, in relation to allegation three, this allegation appears to be substantiated and the reason I believe this is because witness A was credible, it was backed up by documentary evidence, on the other hand, this witness evidence was a little bit thinner and wasn't really backed up by anybody else.
Paul Ball: Conclusion about that particular allegation, so it's identifying different stories, why it is that you the investigator have reached the conclusion that is the conclusion that you've reached. And then I guess the final part of the conclusion is any recommendations, and I think we've already talked about how far you to go with recommendations. The final bit and this is drawn from a procedural perspective, is appendices to it so that would be the meeting notes, The witness statements and the other documents in play.
Paul Ball: So that's the kind of structure that I would apply to it.
Gearalt Fahy: And I might not be quite as rigid in terms of approach. I think that you don't want to get too hung up on the report itself. What's more important is what you said lastly, Paul which is the appendices because that's the actual me of the investigation. Yes it's relevant as to what the investigator things in terms of whether or not something is proven or not, or who they believe or who they don't, but ultimately, they are not a decision maker. They almost certainly not going to be a witness in any tribunal proceedings that might follow. This will rest with person who was going to make the decision on whether it be a grievance or disciplinary performance issue.
Gearalt Fahy: So what's most important, yes summary of how you have investigated things perhaps, pulling out the key points from certain statements, what may be two or three individuals said on a particular allegation. But it's summary form.
Paul Ball: Even a summary form, you don't underestimate how long it takes to do this. The report part of it takes a lot longer than you might think, if you want to do a half decent job of it. And Gerrol’s right, it is rare that the investigator will ever be a person who is required to give evidence. When that might happen though, would be for example if the discrimination claim or discrimination allegation, and the individual may not just say I was discriminated against and raised a compliment about that discrimination, but actually the way the investigation was conducted reinforced the discrimination and there for the conduct of the investigator may be brought into question. So there are some limits to circumstances where an investigator might need to be giving evidence, but you're quite right, it's not really usually that person, it's the disciplining officer.
Paul Ball: The idea of the investigation is to try and make the role of the disciplinary manager easier for them to reach a conclusion one way or the other at that next stage, if there is any question that the allegations appear to have substance them. The appendices, the Direct evidence or the fact that you've obtained during the investigation, are very relevant for the discipline and manager, the rest of the report is relevant I guess for the investigator to show this is why I've done a pretty decent job of reaching those particular conclusions in the event of the person says this investigator is biased or they haven't done a thorough job, they've tried to find a particular conclusions because they hate me or something like that.
Host: So when we come to the end of it all, who sees the investigation report?
Gearalt Fahy: The most important person to see the report will be the person who is going to make a decision as to whether or not to proceed beyond that investigatory stage. So if it may warrant further investigation and disciplinary hearing or a grievance hearing, then it will be that individual. In the event that it will proceed, then the individuals should see a copy of all of the evidence that's been found from the investigation so that they have the opportunity, when it would come to a formal meeting to state their case.
Paul Ball: I mean there might be circumstances where some of the evidence might be anonymized for reasons of sensitivity, but that's really an exception rather than a rule. The way that I look at it is you should assume that if you preparing a report, this will be seen by the person who may be hearing the disciplinary allegations, it might be seen by the person who was accused. The person who was raised the complaint, if we're dealing with it as an investigation of a grievance, doesn't necessarily get to see that report. But, and I think it's quite an important but, I would also be thinking that there's a chance that this could end up in the litigation employment tribunal, in which case we now report will be a disposable document in the employment tribunal process and the complainant might see the report then, the tribunal are likely to see the report and the other evidence that has been obtained. So I'd be writing it and thinking about what I'm saying, as though it's going to be seen by a third party.