Opinion:
When appointing an external investigator is a good idea

Quite simply, yes, it is.  There will be HR professionals out there who will have lost count of the number of investigation processes they have carried out or presided over.  They know their organisation and its policies and procedures the best and will, in most cases, be the right team to carry out or oversee an investigation, to ensure it is completed fairly and efficiently.  Organisations shouldn’t lose sight of this.

So, why then are organisations increasingly looking to external support to help with workplace investigations, and when is seeking this external support a good idea?  We have seen such a clear upward trend in employers seeking assistance with internal investigations, that we have recently launched our own investigation service for clients.  We look in more detail, below, at what has driven this trend, and consider the top five questions employers should always ask before they embark on the investigation process, to assess whether an external investigator is needed in any case.

(1) Impartiality and independence

Is there any risk of impartiality or independence being compromised during the investigation process, and can this be resolved by appointing an external investigator?

Impartiality and independence should sit at the heart of every investigation, so it is important that the investigator maintains their integrity throughout the process and is not influenced by anyone in the organisation.  A failure to remain impartial is the easiest way an employee can allege that a process is unfair.  A clear advantage of having an investigation conducted by an external expert is that it minimises the potential for an employee to allege bias over the process during this early stage.

The identity of the investigator

There are lots of ways a fair process has the potential to be compromised by the identity of the investigator, resulting in allegations of impartiality and lack of independence.  For example, if an internal investigator is:

• personally involved in the matter under investigation;
• likely to be influenced by others in the organisation;
• junior to colleagues who are the subject of the investigation; or
• likely to be involved in any subsequent decision-making process.

The difficulties of policing impartiality and independence are played out in employment tribunal cases on a regular basis.  In Ramphal v Department for Transport, an employee was accused of misusing a hire car and credit card which was provided to him for work-related expenses.  The investigator’s recommendations were found to have been heavily influenced by HR.  The final report was altered from originally recommending a finding of misconduct with a sanction of a final written warning (based on the investigator’s original view that the employee’s misuse had not been deliberate and there was no evidence of dishonesty), to then recommending a finding of gross misconduct with a sanction of summary dismissal.  During the six-month period between the investigator’s draft and final report, there was frequent communication between the investigator and the organisation’s HR department and the suggested amendments by HR resulted in favourable comments being replaced with critical ones.  The changes were so striking that they gave rise to an inference of improper influence, and the case was remitted back to the Tribunal to revisit its original finding that the dismissal process had been fair.

Ramphal is an extreme case.  Allegations of improper influence, impartiality and lack of independence won’t always be evidenced by numerous iterations of draft reports.  It will be more subtle than that, with employees arguing that there cannot possibly be a fair process for a whole host of reasons due to the identity of the investigator.  Appointing an external investigator can remove these challenges.

Allegations concerning senior employees

Rather than the identity of the investigator, it might be the identity of the complainant or accused which calls for an external investigator to be appointed.  For example, if allegations are made against a senior employee, engaging an external investigator to conduct an investigation pre-empts any suggestion that an organisation is looking to cover up the allegations.  Consequences of high-profile investigations can be played out in the press.  In such reputationally sensitive cases the decision to appoint an external investigator to undertake the investigation can preserve an organisation’s credibility as it demonstrates that it takes its duty of care to employees seriously, and isn’t afraid to face up to potentially uncomfortable truths.

(2) Career ending allegations

Could the allegations result in the loss of a career?

Organisations often face criticism for failing to investigate concerns thoroughly enough, particularly when the allegations are so serious that they have the potential to blight the career of the individual in question, for example in regulated professions.  In such cases, Tribunals have set a particularly rigorous standard of investigation for employers in order to ensure that the investigation process is managed objectively.  In Oram v Governing Body of Hertswood School and another, allegations of sexual misconduct had been made against a teacher who was later dismissed following an internal investigation.  The Tribunal found that the internal investigation was inadequate and some evidence against the teacher was not persuasive enough.  It also held that the employer had not acted reasonably when it disregarded and overlooked some evidence during its investigation.  The Tribunal criticised the investigating officer for failing to look for cogent and persuasive evidence and give weight to the retraction of the key witness’ statement, since the withdrawal of that statement pointed to the teacher’s innocence.

The Tribunal further highlighted that where the result of an investigation would directly determine or exert a substantial influence over the individual’s right to practice their profession, there is little room for procedural errors.  Employers must remember that shortcomings in the investigative process have a broader impact on the individual and there are higher expectations on the employer to take further steps to ensure that career threatening allegations are thoroughly investigated.

Whilst Oram focusses on the education sector, its principles go wider than that and will be relevant for those working in any professional service or regulated sector.  If the allegations could result in any person losing the right to practice their profession, serious thought should be given to engaging an external investigator.

(3) Sensitivity of the allegations

Are the allegations so serious and/or sensitive that they call for an external investigator to be appointed?

Organisations across a variety of sectors are championing and prioritising equality, diversity and inclusion (ED&I) initiatives.  Most organisations will have corporate values rooted in promoting ED&I and a huge amount of reputational stock is placed on this.  Striving for a high standard of performance in this area is now a must for all organisations.  There can be disastrous reputational consequences when the handling of internal procedures concerning ED&I issues, such as complex grievances relating to discrimination and harassment, go wrong.  Organisations need to be more alive than ever to the fact that they must ensure that the processes they adopt can live up to the increased public scrutiny they now operate under.  Appointing an external investigator will help rebut any allegation – from an employee, stakeholder or the press – that issues have not been taken seriously.

Appointing an external investigator can also help limit the number of people internally who are aware of the allegations.  Often, we see employees (both the complainant and the accused) express a desire for concerns to be investigated as confidentially as possible.  Involving an external investigator helps to achieve this.

Finally, and most importantly, it is our experience that organisations want to do the right thing.  If there has been any kind of wrongdoing, they want this dealt with and appropriate action taken against those culpable.  They also want the opportunity to learn from where things have gone wrong.  Sometimes, the person best placed to get to the bottom of what has happened in any situation and to recommend meaningful change is an external investigator who is able to look at allegations objectively.

(4) Complexity of legal issues

Do the legal issues warrant having a legally trained expert conduct the investigation?

Some allegations can be a legal minefield.  The first thing any investigator will need to do is establish what is to be investigated.   Where this involves complex legal issues such as whistleblowing concerns, allegations of discrimination based on a sustained course of conduct or a failure to comply with regulatory or director duties, having a clear understanding of the legal issues that sit behind the matters being investigated can be invaluable.  As an investigation progresses, further issues may arise, for example in relation to the competing rights of complainant, accused and witnesses, in relation to protection of their personal data.  If the investigator is not alive to these issues, irreparable damage can be done as part of even a well-meaning line of enquiry.  Even in more straightforward cases such as in Ramphal, perhaps the outcome would have been different had the investigator had from the outset the benefit of legal training and the experience of judging when the circumstances of a particular case reach the threshold for it to be considered as a potential act of gross misconduct.

Organisations should assess if the issues under consideration would benefit from having someone who is legally trained conduct the investigation.  If the answer to this is yes, and if there isn’t this type of resource available in house, an external investigator might be the solution.

(5) Time and resources

Does the organisation have the time and resources to dedicate to the investigation process to ensure it is carried out as robustly and efficiently as possible?

Conducting an investigation can be a time-consuming task, and not every organisation has sufficient resources at its disposal which would allow a senior manager to split their time between their day-to-day tasks and the role of an investigator.  It is also likely that an investigator will come across contradictory evidence and uncooperative witnesses that increase the overall length of the investigation, and employers should remember that the investigator will require time to carefully draft the investigation report following the investigation.

Ensuring investigations are carried out in a timely manner is crucial.  An employee awaiting the result of a disciplinary investigation may be suspended on full pay at considerable cost to an organisation. They will also be anxious to find out the result of the investigation process.  If an employee is suspended for an extended period pending the outcome of an investigation, this might result in their credibility in the organisation being compromised to the extent that it would not be viable for them to return to their role, even if ultimately exonerated.

Similarly, an employee who has, for example, raised serious discrimination or harassment allegations will need their concerns dealt with swiftly so as to not delay or exacerbate any anxiety they may be feeling as a result of raising such difficult issues with their employer.  From the employer’s side, the Acas Code of Practice on Disciplinary and Grievance Procedures requires employers not to “unreasonably delay” when dealing with disciplinary and grievance investigations.  If a Tribunal feels that an employer has unreasonably failed to follow the Code, it can increase any award made against the employer by up to 25%.

Time constraints on the relevant personnel may be a significant factor to consider when deciding to appoint an external expert.

Additionally, where practicable, different people should carry out an investigation to the person hearing the substantive issue – especially in disciplinary cases.  A good tip for employers is to take a few minutes to ‘map out’ at an early stage who the key personnel might be for investigating the allegations and dealing with any subsequent process(es).  For example, a grievance raised against someone senior will ideally need the involvement of three different senior managers – one to investigate, a second to hear the grievance and a third to hear any grievance appeal.  If the grievance results in disciplinary proceedings being recommended, two further senior managers will also be needed – one to chair the disciplinary hearing and someone else to deal with an appeal.  That’s five senior managers overall, all of whom need to be sufficiently independent from the allegations at the point at which they consider them.  That means they should not be involved in any overarching ‘strategy’ or discussion with an organisation’s legal team about the case.  Appointing an external investigator will help ensure there are sufficient independent personnel at a senior level to be able to deal with any future processes which may arise.

While appointing an independent investigator inevitably incurs a direct financial cost to the organisation, this needs to be weighed against the cost saving associated with not having a senior manager distracted from their day job, potentially for tens of hours, to conduct in an investigation process, which may not necessarily play to their skillset or training.

How we can help

We will shortly be publishing a series of three short articles each of which takes a closer look at some of the key issues set out above.

If you need legal advice on any of the issues this article considers or if you feel that your organisation would benefit from using Greenwoods’ Workplace Investigation Team, please get in touch with Sophie Askew.  We would love to discuss how we can help.