Conducting workplace investigations for public servants

​About

This guide outlines the essential decisions and actions that should be made when deciding to conduct an investigation. It also provides important information divided into manageable steps for anyone who has been appointed to conduct an investigation.

The order of steps 3 and 4 may change depending on the facts and information required, and how an investigator thinks the matter should be approached. However, considering the relevance of each step to the matter being investigated will help an investigator to complete a thorough and fair process. The guide is a reference tool for those with experience of investigations and an introduction for those new to investigations.

Employees and their representative's companion can also use the guide to gain an understanding of how and why investigations should be conducted.

What is an investigation?

An investigation is an exercise to collect all the relevant information on a matter. A properly conducted investigation enables an employer to fully consider the matter and then make an informed decision on it. Deciding without completing a reasonable investigation can make any subsequent decisions or actions unfair and leave an employer vulnerable to legal action.

The role of the investigator

The role of an investigator is to be fair and objective so that they can establish the essential facts of the matter and reach a conclusion on what did or did not happen. An investigator should do this by looking for evidence that supports the allegation and evidence that contradicts it. In potential disciplinary matters, it is not an investigator's role to prove the guilt of any party but to investigate if there is a case to answer.

Investigations process flow

Step 1: Preparation

Step 2: An Investigators preparation

Step 3: Handling an investigation meeting

Step 4: Investigation meetings - the process

Step 5: Reporting the investigation findings

Step 6: After an investigation is completed

Step 1: Preparation

Deciding if an investigation is necessary.

Our aim is to ensure that all incidents and issues that arise in the workplace are dealt with fairly and consistently and will be investigated where necessary. However, in the first instance, we should consider whether a quiet word or informal action may be all that is required to resolve a matter.

Most problems that arise can be settled quickly and without undue process. This can also consist of a five day fact find which provides an opportunity to establish whether there is sufficient evidence to carry out a full investigation.

Considerations before making a decision

• do all breaches of policies and procedures require an investigation? Our policies and procedures clearly state if they require a formal investigation on the matter under consideration.

Where it is uncertain whether a full investigation is necessary or appropriate, a five day fact find could gather enough data to determine whether a full investigation is warranted. If an investigation is necessary, then we must ensure that we act promptly, as unnecessary delays may cause memories to fade or give the perception of an unfair process.

Importantly, where there is an option within the policy to informally resolve the matter, it should still be considered as an option at any stage of the process. In this situation, it is reasonable to pause the process to explore informal resolution or using the fast-track process as an outcome.  The fast-track process is subject to both parties agreeing and is only applicable to the disciplinary policy. Refer to the disciplinary policy for reference.

What does the investigator need?

When instigating an investigation, the investigator must be clear on what the allegations are, referred to as the "terms of reference" and should also be aware of what the investigator's role is and what their responsibilities are during the investigation process.

The terms of reference should spell out:

• what the investigation is required to examine ensuring dates and times are noted when available
  

Clear terms of reference can

• help complete the investigation in a timely manner
• clarify exactly what the investigator's remit is
• ensure all key facts are responsibly investigated
• ensure an investigator only collects information and facts relevant to the matter
• minimise any negative impact on staff morale caused by investigation meetings
• minimise disruption to the organisation's daily business needs

If new issues come to light

If a new matter comes to light during an investigation, the investigator, and the person they report to may need to: 

• agree changes to the terms of reference, or to
  
• authorise a further investigation
  
• decide who will deal with the matter
  
• discuss with the case manager for procedural advice
  

Keep the matter confidential

An investigation will be kept confidential. Even if it becomes known that one is being conducted, the details of the investigation must be kept confidential.

Keeping the matter confidential can:

• reduce any negative impact to all involved in the matter
• avoid compromising the investigation process
• help to ensure that staff morale is not unnecessarily affected
• reduce the risk of witnesses discussing or agreeing what their evidence should be

Possible temporary measures

Many investigations may be conducted without removing an employee from their typical working environment. On occasions, an employer may need to consider making adjustments to the role or implementing a temporary measure while an investigation is conducted.

Temporary transfer

Sometimes, rather than the more extreme measure of suspension, it may be more practical and productive to transfer an employee to a different area of work on a temporary basis. If tensions between certain employees within the organisation are high, then a temporary transfer can stop them having to work together while the investigation is carried out. In practical terms, a temporary transfer will not always be possible. A transfer of an employee should be to a role of similar status in the organisation, if possible.

Suspension

In certain situations, the employer may decide that suspension with pay is necessary as a precautionary measure, while the investigation is carried out.

This may include where:

• working relationships have broken down
• the employee could interfere with evidence
• there is a risk to an employee's health or safety
• property or the business of an employee or the organisation may be damaged

Suspension with pay should only be used after careful consideration, as a last resort and should be reviewed to ensure it is not unnecessarily drawn out.

It should be made clear that the suspension is temporary, not an assumption of guilt and not a disciplinary sanction. See the suspension policy on MyStates.

Criminal proceedings

Some matters might also warrant a criminal investigation involving the Police; however, some employers will be obligated to raise some matters to the relevant authorities.

For example, an organisation that works with children may have safeguarding procedures that require the local authority to be informed in certain circumstances. An employer should therefore check their policies and procedures before deciding not to inform the police. If criminal proceedings do commence, an employer may decide to put their investigation on hold until the criminal proceedings have concluded.

Step 2: An investigator's preparation

Draft an investigation plan

Creating an investigation plan can provide an investigator with a structured approach to follow. This can help an investigator focus on:

• what facts need to be established
• what evidence needs to be collected
• completing the investigation within the provisional timeframe

An investigator should be prepared to modify their investigation plan as and when further evidence comes to light that may be relevant to the investigation.

Check policies and procedures

An investigator should collect copies of any policies and procedures that may be relevant to the matter. Even if an investigator is already aware of the policies, they should re-read them to refresh their knowledge and ensure that correct procedures are followed wherever required.

Identify possible sources of evidence

There is no exhaustive list that an investigator can rely on to know what sources of evidence they should collect. Each investigation will be different and the facts and information that need to be collected will also differ. When initially identifying what may be relevant an investigator should consider:

• the terms of reference and what they need to establish
• what sources of evidence may be available to establish the facts of the matter
• how the evidence could be collected
• whether there are any time constraints for collecting the evidence, such as a witness going away on annual leave or CCTV records that are usually deleted after a certain length of time, subject to retention records

As the investigation progresses, other possible sources of evidence may come to light or become relevant.

However, an investigator should remember that they only have to conduct a reasonable investigation. They do not have to investigate every detail of the matter, only what is reasonably likely to be important and relevant to the terms of reference.

Identify possible parties relevant to the investigation

When individuals might be able to provide information relevant to the investigation, an investigator may interview them and/or ask them to provide a witness statement.

Decide in what order evidence should be collected

The order in which evidence should be collected will change depending on the matter being investigated. Where the matter is relatively straight forward, an investigator should hold some or all of the investigation meetings at an early stage of the investigation.

If a person raised a concern and an investigation is deemed necessary under the relevant policy and procedure, an investigator should interview them first to ensure that they fully understand the matter. In a potential disciplinary matter, an investigator should also consider interviewing the employee or employees under investigation at an early stage. Doing this can help to establish what facts are disputed and allow an investigator to focus the rest of the investigation on these areas. Also, if they admit the allegations against them are correct it might remove the need to investigate the matter as fully as planned. However, their explanation of why the incident occurred may still need to be investigated. Where there is considerable physical or written evidence, or the matter is very complex, an investigator should consider whether or not to collect other evidence before interviewing the employee or employees under investigation. Doing so may help them to fully understand the matter and help them to ask the appropriate questions at the investigation meeting.

Consider the health and wellbeing of staff involved

An investigation can be stressful for everyone involved. Sometimes it can lead to significant distress, and negatively impact the mental health of an employee. Where concerns about the mental health of an employee are raised, an investigator should treat the issue seriously and consider whether the process can be adjusted in some way.

If wellbeing concerns are identified, the investigator should contact the case manager to arrange specific support.

Arrange where meetings will take place

An investigation meeting should take place in a private room, where interruptions are unlikely to occur. Usually, meetings should be at the employee's normal place of work and during working hours. However, where a greater degree of confidentiality is required, it may be better to hold the meeting outside of normal working hours or away from the organisation.

Informing an employee, they are under investigation

If an employee is under investigation, they must be informed in writing of the allegations against them and that an investigation will be carried out. They should also be notified who they can contact if they have any questions or concerns during the investigation. This is typically the case manager allocated from the HR Case Management team. In most situations, an employee should be fully informed about the investigation into their actions from the outset. An investigator should give any employee that they intend to interview 5 days written notice of their investigation meeting and the letter should contain:

• the date, time and place of the meeting
• the name of the investigator and what their role is
• the reason for the meeting
• an explanation that the meeting is only to establish the facts of the matter and is not a disciplinary hearing
• a request to keep the reason for the meeting, and any discussions that take place, confidential
• that there is a right to be accompanied to the meeting by either a workplace colleague or Trade Union Representative
• that it may be a disciplinary issue if they unreasonably refuse or fail to attend the investigation meeting

Step 3: Handling an investigation meeting

While investigation meetings will often be needed, some investigations will only require the collection of written and physical evidence. In these circumstances, an investigator will not need to follow this step.

What is an investigation meeting?

An investigation meeting is simply an opportunity for an investigator to interview someone who is involved in, or has information on, the matter under investigation. An investigation meeting must never turn into a disciplinary meeting. Any disciplinary action may be necessary a separate meeting must be arranged.

Can an interviewee be accompanied?

Any interviewees or employees under investigation have the right to be accompanied during an investigation meeting.

Right to be accompanied

In many cases it will benefit an investigation to allow an interviewee to be accompanied by a companion, workplace colleague or trade union representative. It can be particularly helpful for the following reasons:

• having a companion can make an interviewee feel more comfortable and more willing to talk openly about the matter
• a companion may be able to help an investigator manage the process more effectively by explaining steps being taken to an interviewee
• a procedure that allows a companion can increase the confidence staff have in a credible process
• it can help support the employee and witnesses' wellbeing as investigations can be stressful

Recording an investigation meeting

If investigation meetings are necessary, an investigator needs to plan how they will be recorded. Typically, an investigator may record the meeting themselves or have someone act as a note-taker. Having a note-taker for the meeting can allow an investigator to focus on exactly what the interviewee says and consider what additional enquiries are necessary to establish the facts of the matter. A note-taker can also be used to read back answers given during the meeting and check that what has been recorded is agreed as being accurate.

It may be appropriate for a meeting to be recorded on Microsoft teams for example, which enables more accuracy.

What notes should be taken?

Notes taken at the meeting will usually become an interviewee's statement. The notes should therefore record:

• the date and place of the interview
• names of all people present
• an accurate record of the interview
• any refusal to answer a question
• the start and finish times, and details of any adjournments
• should be written without gaps, to avoid the accusation that gaps have been filled in after the meeting

The notes taken do not need to record every word that is said but they should accurately capture the key points of any discussion. Further information on statements is provided in Step 4.

Investigation meetings - the process

Investigation meetings are often difficult and emotional, especially for someone who raised a complaint or is under investigation. An investigator following a structured process, by pre-planning their initial questions, will reduce unnecessary stress and help keep the interview on the right track.

The interview process

Before the meeting takes place, an investigator should:

• establish how the interviewee may be able to help with the investigation and plan initial questions accordingly
• book an appropriate time and place for the meeting
• write to the employee inviting them to the meeting and detail any rights of accompaniment

At the start of the meeting an investigator should explain:

• who is present and why
• the role of the investigator
• the purpose of the meeting
• the need for confidentiality during the investigation
• that the interviewee's statement may be used in an investigation report
• who will see the interviewee's statement

During the meeting an investigator should:

• ask questions to gather the facts of the matter
• probe the interviewee without it being in an adversarial manner
• record responses and any refusal to respond
• seek evidence that may substantiate the information provided

At the end of the meeting an investigator should

• check if there is anything else the interviewee thinks is important before ending the interview
• ask if there are other witnesses that they think should be interviewed and why
• explain that the interviewee will be provided shortly with a copy of their statement for them to check and confirm that it is accurate

After the meeting, an investigator should:

• provide the interviewee with a copy of their statement and seek agreement that it is accurate
• consider what the important facts from the meeting were and whether evidence already collected supports or contradicts these
• consider whether the meeting suggested any further evidence needs to be collected or interviews arranged

Although an investigator should plan to only interview each employee once, as further facts and information are collected, it may become necessary to interview some employees again to clarify certain points.

Reluctant witnesses

Some employees may be reluctant to provide evidence for an investigation. An investigator should explore why an employee is reluctant to give evidence, provide reassurance and seek to resolve any concerns they have.

Anonymous statements

An investigator should try to avoid anonymising statements whenever possible. This is because an employee under investigation is likely to be disadvantaged when evidence is anonymised as they will not be able to effectively challenge the evidence against them.

Only in exceptional circumstances where a witness has a genuine fear of reprisals should an investigator agree that a statement is anonymised. However, if the matter becomes subject to legal proceedings, and it is necessary in the interests of fairness, an employer may be required to disclose the names of any anonymous witnesses.

Where an investigator decides that the circumstances do warrant an agreement to anonymity, an interview should be conducted, and notes taken without regard to the need for anonymity.

An investigator should then consider what, if any, parts need to be omitted or redacted to prevent identification. This should be discussed with the commissioning manager and case manager.

Handling a refusal or failure to attend an investigation meeting

If an employee refuses to attend an investigation meeting, an investigator should try to find out why and see if there is a way to resolve the issue. It may be that they are unable to attend for a legitimate reason, such as illness, and an investigator could rearrange the meeting or ask the employee to produce a statement instead.

Employee relationships and motives

When interviewing a witness an investigator should be alert to their possible motives. They should make tactful enquiries into the relationship between the witness and any employee involved in the matter because this may add or detract from the validity of the witness's statement. Usually, this can be done when interviewing the witness themselves and, where relevant, the person under investigation. However, in some circumstances an investigator may also decide it is necessary to ask other witnesses for their views on the impact a particular relationship might have. An investigator should be careful about the tone and phrasing of their enquiries and remember that a witness is not under investigation.

Step 4: Gathering evidence

When gathering evidence an investigator should remember that their role is to establish the facts of the matter. They should therefore not just consider evidence that supports the allegations but also consider evidence which undermines the allegations.

Once collected an investigator should objectively analyse each piece of evidence and consider:

• what does the evidence reveal?
• are there any doubts over the credibility and reliability of the evidence?
• is the evidence supported or contradicted by evidence already collected?
• does it suggest any further evidence should be collected?

A statement will usually be a signed copy of the notes from an investigation meeting. An interviewee should also be given a copy of their statement taken at the investigation meeting to check that they agree it is accurate. This should be done within 5 working days after the meeting so that memories are still fresh.

Once the interviewee has checked the document, they should sign the statement confirming it is an accurate reflection of the conversation.

An interviewee should be allowed to amend their statement but should sign any amendments they make to the original document. Where changes to the statement are made that an investigator believes contradict what was said at the meeting, it may be necessary to note this and include both the original statement and the amended statement in the report. If an interviewee refuses to sign their statement, an investigator should try to find out why and resolve the issue.

If a resolution cannot be reached, an investigator should include the statement in their report while acknowledging that the interviewee refused to confirm that it was an accurate reflection of the meeting.

If a statement cannot be physically signed, it is acceptable to send confirmation of agreement by email.

When might a statement be provided without a meeting?

An investigator may sometimes decide that a statement can be supplied without a meeting in circumstances such as:

• if a witness is not an employee
• when the facts required from a witness are very simple
• where a witness is ill and unable to attend an investigation meeting

An investigator should provide a reasonable deadline for completion and ask the witness to answer specific questions or to include in their statement:

• their name and, where applicable, job title
• the date, place and time of any relevant issues
• what they saw, heard or know
• the reason why they were able to see, hear or know about the issues
• the date and time of statement
• their signature or if this is not possible, an email to confirm agreement

A statement supplied in writing will be of limited use where there are doubts about the witness's account or the witness needs to be probed for further details.

Written records and documents

An investigator should collect any documentation that may be useful to establish the facts of the matter, such as attendance sheets and records or paper copies of electronic material. These types of documentation can help an investigator corroborate or contradict other evidence collected and can highlight areas that an investigator needs to explore further at an investigation meeting.

Physical evidence

There may be physical evidence, such as CCTV or computer and phone records relevant to the investigation, which can be obtained lawfully and without breaching the employee's employment contract. If physical evidence is collected, an investigator should document what it is, how it was collected and what it reveals. This can make it easier for an investigator to refer to the evidence at the conclusion of the investigation. Any physical evidence gathered should also be retained in case it needs to be viewed again at a later date. The designated Data Protection Officer should always be consulted before releasing any data which contain any personal data (which includes an individual's image).

Step 5: Reporting the investigation findings

Once an investigator believes they have established the facts of the matter as far as is reasonably possible and appropriate, they will need to produce an investigation report that explains their findings.

An investigation report should cover all the facts that were and were not established, and whether there were any mitigating circumstances that also require consideration. To exclude any information may leave an investigation open to accusations of bias and filtering evidence to suit their findings.

Investigators will be provided with a template for investigation reports, which is held by the HR Case Management team.

Supporting documents

Copies of all documents and statements collected and referred to in the report should be included and clearly referenced either via page numbers or appendices.

Tips and techniques for writing a report

When writing an investigation report, an investigator should remember who will read the report once it is completed and that this will often include an employee who raised a grievance or an employee under investigation.

The report should therefore:

• be written in an objective style
• avoid nicknames and jargon
• use same form of address for all people referenced
• use appropriate language and keep simple wherever possible
• stick to the facts of the matter
• keep it concise
• explain any acronyms used
• include all evidence that was collected

Reporting what is likely to have happened

While reporting with absolute certainty on a matter is desirable, it will often not be possible.

An investigator should arrange their evidence into:

• uncontested facts: Where the facts are not in dispute, they can simply be reported as factual
• contested facts: Where the facts are contested or contradictory, they should determine what, on the balance of probabilities, took place (see below)
• unsubstantiated claims: Where an investigator is unable to substantiate an allegation they should consider if further investigation is reasonable or report that they are unable to draw a conclusion

The balance of probabilities

An investigator should endeavour to reach conclusions about what did or did not happen, even when evidence is contested or contradictory. In these circumstances an investigator will need to decide whether, on the balance of probabilities, they could justifiably prefer one version of the matter over another and explain why. Unlike criminal law, an investigator conducting an employment investigation, does not have to find proof beyond all reasonable doubt that the matter took place. An investigator only needs to decide that on the balance of probabilities if an incident is more likely to have occurred than not.

Malicious complaints

A further issue that an investigator may sometimes need to consider, is whether an employee raised a malicious complaint.

An investigator should consider what the evidence collected suggests, but the employee should usually be given the benefit of any doubt. If an investigator decides the complaint was clearly malicious, they should refer this to the case manager.

Recommendations:

An investigator could make recommendations which may include the following:

• changes to an organisation's policy or procedure
• further investigation into other matters uncovered
• training or coaching for parties involved
• counselling for parties involved
• mediation for parties involved

Step 6: After an investigation is completed

Concluding the role of an investigator

Once an investigator completes their investigation and hands in their report, they will usually not be involved in any further action other than the following possible matters:

• discussing the report in person: sometimes an investigator may need to discuss their findings with the individual or panel they report to. In disciplinary matters, the focus of discussion should only be to decide whether any further steps are necessary

Attending the disciplinary hearing:

An investigator may be required to attend a subsequent hearing. However, they should only be there in a fact giving capacity. They should not be there to give their opinion or present the case against the employee. The investigator should not discuss what sanction might be imposed if a disciplinary charge is established.

It should be the commissioning manager and not the investigator who makes the final decision as to whether or not a disciplinary hearing will be held. If their decision differs from the investigator's recommendation, the reasons for this should be written down and included as an addendum to the report.

Recommendations unrelated to the investigation matter

During an investigation an investigator may identify other issues that, while outside the scope of the terms of reference, may still require action. An investigator should note what other matters may require further action and report these to the case manager in a separate document for them to consider.

Clarifications and further enquiries

On some occasions an issue may be raised during a formal hearing which may not appear to have been considered during the investigation. The hearing may therefore need to be adjourned while the Chair of the hearing discusses and clarifies the matter with the investigator. Only in exceptional circumstances will there be a need to reinvestigate the whole matter. However, a commissioning manager may ask an investigator to investigate any new issues put forward or investigate it further themselves.

Approaching the matter in this way means that a deficiency in an investigation may be rectified or a new argument can be fully considered.

Keeping investigation reports

There will be a need to retain investigation reports for a period of time in line with the retention schedule. Where the report includes details about individuals, (including witnesses) it is important to keep the report securely stored and restrict access only to those individuals who need it and to be aware of data protection or other legal requirements.

If an individual wishes to see a report they believe they have been named in, they have a right to see any parts of the report that contain information about them, or that are reliant on information that they have provided. However, they should not be allowed to see private information belonging to other individuals.

The report should be securely disposed of once it becomes irrelevant or out of date. Public servants can find more information about data protection on Mystates.