When might you need to carry out an investigation?
There are many situations in the workplace that require investigations.
Workplace misconduct
This is a spectrum of poor employee behaviour ranging from more general misconduct (eg lateness to work, refusal to follow management orders) to more serious or ‘gross’ misconduct (eg theft, fraud, violence). An investigation is usually required to establish whether an employee is in fact guilty of misconduct. Where an investigation finds evidence of misconduct, this is typically treated as a disciplinary matter at a subsequent disciplinary hearing. If an employee has over two years’ service and you dismiss them for misconduct without any investigation into the misconduct, the dismissal will nearly always be unfair.
Workplace grievances
These are typically complaints that employees raise about the workplace or their working conditions. This could include complaints about their terms and conditions relating to pay and benefits, performance and promotion decisions or the behaviour of a colleague. A grievance investigation will normally involve reviewing the employee’s complaint and any allegations, speaking to witnesses and deciding whether or not to uphold the grievance with recommendations for further action.
Allegations of bullying, harassment and discrimination
These are particularly sensitive employee relations issues that employers should address through robust and timely investigations because of the impact on the individuals involved, as well as the potential for very costly employment law claims and reputational damage. In many cases, bullying, harassment and discrimination allegations will normally be set out in a grievance and, as such, can be handled under a grievance process. However, there are situations where employers can come across bullying, harassment and discrimination allegations inadvertently (eg during an exit interview) and they should still review them as part of an investigation. An investigation is required to establish whether there is evidence to uphold the allegations and whether any further action needs to be taken (eg disciplinary action against the accused employee or improvements to policies, procedures and company culture). Sexual harassment in particular has been very topical in recent years with a new mandatory duty to prevent sexual harassment came into force in 2024 - employers would be wise to review and investigate any allegations of sexual harassment with a particularly fine toothcomb.
Whistleblowing
This is where an employee makes a protected disclosure about wrongdoing within their workplace (eg a criminal offence or health and safety risk). It’s important to fully investigate whistleblowing disclosures since these may alert you to genuine risks and liabilities within your business (eg a risk to life or financial irregularities). Employees are also protected from dismissal and detrimental treatment for making whistleblowing disclosures and claims in relation to these protections can be costly. A robust investigation can therefore help you show that you took the employee’s disclosures seriously and minimise the risks of whistleblowing related claims against you. Investigations also help you contain whistleblowing disclosures internally within your business and reduce the chances of an employee making an external disclosure (eg to a regulator or to the press) which could have serious consequences both regulatory and reputational.
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When faced with serious workplace allegations, it's crucial to act promptly and professionally. Contact us today to discuss how we can assist you in resolving these matters effectively.