While the outcome of the Priti Patel bullying allegations continue to be dissected, Helen Crossland considers why the process is critical in terms of the handling of the investigation and ensuring employer’s get it right from the outset.
Following on from our article of 20 November 2020, here, the fallout from the outcome of Sir Allen Alex’s investigation into Priti Patel’s conduct rumbles on. The Government’s refusal to allow Sir Allen to interview Sir Philip Rutnam (who has a pending claim in the Employment Tribunal against Ms Patel), as part of his investigation, has been met with rebuke. For some, it suggests the investigation was flawed as Sir Philip Rutnam’s evidence may have been pivotal to the outcome.
The spotlight is now on investigations making it more important than ever to ensure that a full and fair investigation is conducted where disciplinary allegations arise, or where a grievance is brought. The purpose of an investigation is two-fold; to gather evidence and to consider if formal action is necessary.
Risks
The lack of, or a flawed investigation can result in:
- The wrong or inconsistent decisions being made.
- A dismissal being rendered unfair after time consuming and expensive litigation.
- A disaffected workforce if confidence in the employer’s policies and procedures and fair treatment of employees is undermined.
- An uplift of up to 25% to any compensation awarded to a Claimant.
- Reputational damage. Tribunals are open hearings, and negative publicity can result from a business’s handling of HR matters being exposed.
- Additional claims, including discrimination if a Claimant can show an investigation or lack of, was tainted by discrimination.
- Future claims from other employees who might capitalise on the business’s history of mishandling HR issues and procedures.
In some limited circumstances, an investigation may not be warranted and the employer can proceed straight to a formal process. For example, where an incident self-evidently occurred and there is no requirement for any other evidence. The business must in such cases, be satisfied that an investigation would not add anything to the decision-making process.
Initial Considerations
When an issue arises, the appointed investigator must be impartial and follow the employer’s internal processes which as a minimum, should be in line with the ACAS Code of Practice. Due regard should be given to using an investigator who is external to the business, depending on the size and resources of the organisation and sensitivity of the allegations.
The investigator should consider holistically what evidence they may need to gather; be it witness or in documentary form. He or she should also consider whether to suspend the ‘accused’ during the investigation. Legally, this should only be done where it is ‘reasonable and proper’. For example, if there is evidence to protect, or if there is a genuine concern that the employee’s presence/access to company data or other employees poses a risk to the business.
Gathering evidence
Any witnesses to the allegations, including the accused, should be interviewed and a full note of the meeting taken. This commonly is converted into a statement which the individual is asked to sign and date. Witnesses should be informed that their evidence may be used in any proceedings which follow. The accused has no statutory right to be accompanied to any investigatory meeting unless the internal policy provides for this or there is an exceptional reason.
ACAS has sanctioned the use of remote meetings during the pandemic, including when interviewing witnesses. Even so, proper regard should be given to upholding the fairness of an investigation during this time and if relevant, employers should document any concerns and how they were overcome.
Conclusion
Once all information has been gathered and recorded, the investigator should write up their findings and make recommendations. These could include invoking a formal disciplinary process. It is for the employer to decide whether to accept the recommendations. If it does not, it should do so in the knowledge of the risks attached. These might be from the accused, or from the complainant if the investigation derived from a grievance, or even from witnesses dissatisfied that justice was not seen to play out.
Consistency and fairness are key. The best armour an employer can have are policies and procedures which are fit for purpose and then carried out in practice. Further, to have trained managers or call upon external support to help conduct investigations so that when an issue arises, the business deals with it effectively and appropriately.
Should you have any queries on the above or require any employment related advice, please contact Helen Crossland at [email protected] or on 020 7725 8034 or Fiona Mendel at [email protected] or on 020 7725 8033.