Why appointing an external Investigator is not enough: Why Investigator Competence Matters

In recent years, many organisations have increasingly turned to external workplace investigators to handle complex or sensitive employee relations issues. Independence can bring important benefits, including perceived impartiality and reassurance to employees that the process is fair.

However, independence alone does not guarantee a sound investigation. Employment tribunals will still examine the quality and competence of the investigation itself, regardless of whether it was conducted internally or externally.

Tribunals consistently emphasise that what matters is whether the investigation was reasonable in the circumstances. This was reinforced in Shrestha v Genesis Housing Association Ltd, where the Court of Appeal confirmed that investigations do not need to be perfect but must fall within the range of reasonable responses open to a reasonable employer.

An investigator who lacks experience in conducting workplace investigations, analysing evidence, or applying the appropriate legal framework can still produce a flawed outcome.

Competence Matters

A competent workplace investigator will understand how to:

• identify relevant issues within the terms of reference
• gather and analyse evidence objectively
• test conflicting accounts
• ensure procedural fairness
• produce a clear and balanced investigation report.

Without these skills, even an independent investigation can fail to provide a reliable basis for management decision-making.

Employment tribunals regularly examine whether the investigation undertaken by an employer was reasonable. In Sainsbury’s Supermarkets Ltd v Hitt, the Court of Appeal confirmed that while employers are not required to pursue every possible line of enquiry, the investigation must still fall within the range of reasonable responses open to a reasonable employer.

Evidence Must Be Properly Tested

A key aspect of investigator competence is the ability to properly assess and test evidence.

Investigators should not simply record what witnesses say. They must consider credibility, consistency, supporting documentation, and any other relevant material.

Failing to properly examine evidence can lead to conclusions that are not supported by the available information.

Tribunals continue to scrutinise investigations where evidence has not been properly explored. For example, in Uddin v London Borough of Ealing [2023] EAT, the Employment Appeal Tribunal highlighted shortcomings in the employer’s investigation and confirmed that weaknesses in the investigatory process can undermine the fairness of a dismissal.

Independence Is Only One Element Of Fairness

External investigators can strengthen confidence in the process. However, independence should never be viewed as a substitute for competence.

Organisations should ensure that whoever conducts the investigation – internal or external – has the appropriate expertise, experience, and understanding of workplace investigation practice.

A poorly conducted investigation can expose an employer to significant legal risk, regardless of whether the investigator was independent.

Final Thoughts

Workplace investigations play a crucial role in supporting fair decision-making and maintaining trust in organisational processes.

Independence can be valuable, but it must be combined with the necessary investigative skills and experience to ensure that findings are robust, balanced, and capable of withstanding scrutiny if challenged in an employment tribunal.

Get the investigation right first time

Get in touch to find out how we can help.