Spotlight on managing complex workplace investigations

Workplace investigations are becoming more complex and more demanding for HR teams. Complaints are increasingly detailed, concerns are being raised through a number of different channels, and AI is adding a new dimension to the way grievances are put together. So, how should employers respond? In this Spotlight programme we’re looking at two key stages of the investigation process: getting the structure and choice of investigator right at the outset and conducting sensitive interviews in a way that is both effective and fair. We’ll hear from employment lawyer Sarah Munro and Kate Dodd, who leads Pinsent Masons’ Employment Plus team.
There is good reason to be looking at this now. Acas has recently consulted on updates to its disciplinary and grievance Code of Practice, with a renewed emphasis on resolving workplace concerns fairly and, where possible, at an early stage. Significantly, the consultation also asked whether the Code or accompanying guidance should address the increasing use of AI in disciplinary and grievance processes.
Against that backdrop, Pinsent Masons is seeing first-hand how the nature of investigations is changing. I put it Sarah Munro that workplace investigations have become increasingly complex: 
Sarah Munro: “Yes, you’re right Joe. Particularly, I would say, over the last five years we as a team have seen a massive uptick in clients coming to us seeking support on complex investigations. The reason, I think, they have become increasingly complex is people are just naturally a bit more litigious. People are upset about things and speak up more, which is a really positive thing, you would want your employees to raise concerns, but we're seeing that happening a lot more. Also, in the last year with the increased use of AI, that has really added an additional dimension because in the past we would see a grievance that had maybe five points that the individual wanted you to raise, or investigate, but now we are seeing grievances and complaints that can run to twenty pages because somebody has put it through AI which has helped bolster their original concerns. So they are the two main points. We're just seeing people want to speak up more, and also then relying on AI to generate these complaints. The other point that I think is important to note is that we get grievances through different routes. Some people will raise them through a traditional grievance route under a grievance policy procedure, but increasingly we're seeing people raising them through whistleblowing portals and hotlines and wanting to remain anonymous. That adds an additional layer of complexity if someone doesn't want to be known because you're then conducting an investigation based on documents, or emails, and not actually able to speak to the person.”
Joe Glavina: “How should employers decide who's the best person placed to conduct an investigation?”
Sarah Munro: “I think the key word is to triage. You need to triage the investigation when it comes in. So it will come in either through a normal grievance process or through a whistleblowing hotline and someone within the organisation really needs to be tasked with looking at that complaint and thinking who is best placed to deal with this? It may be fed back into a normal grievance process that an HR person will do, it may be that somebody within the business needs to investigate it because it's very complex or sector specific or technical, but it might be that you need to outsource it, and the cases that we see coming out are ones where there's no capacity within an organisation to look at it. People don't feel they have the expertise, or there's a real sensitivity around it, whether that's the content of the grievance, or the complaint, or that it involves really senior individuals, and there's a worry that anyone internally would not be suitably independent. So for me, you can really make or break an investigation at that first step. If you can triage it properly, find the right person, whether that's in the organisation or external, to deal with it then that can shape the investigation going forward because a good and well scoped out investigation really stands the investigator in good stead and allows them to do the best possible job in often very difficult circumstances. So getting that structure right at the beginning and getting the right person to do it is key and can set you up for success and, hopefully, protect the business from legal risk because if you have a good, independent, well-scoped investigation, you are hopefully going to expose you and the business to less risk.”
So, getting the investigation properly structured from the outset is critical. But once the investigation is under way, there is another challenge: how to conduct interviews, particularly where the allegations are sensitive or potentially traumatic. That is an area Kate Dodd has been focusing on in her work with clients and in client training. I asked Kate how employers should approach interviews in cases which are particularly sensitive: 
Kate Dodd: “It’s a great question. I mean, employers should always approach investigations sensitively because no matter how significant it is for the employer, for that employee to be involved, either because they have raised an issue because they are responding to an issue, or as a witness, employees should be very aware of how that might have a significant impact on somebody's mental health. Employers really do need to be extremely mindful about the way that they set things up, about the way that they approach people, about even just as small as letting people know what their role is, what it means, what's going to happen next, so that it's very clear for employees who are being asked to participate, or who find themselves in that situation, so that they know what's coming next and they understand what's going to happen.”
Joe Glavina: “I’m aware that in the training you’re doing with clients on this you talk about a ‘trauma informed’ approach to investigations. What do you mean by that?
Kate Dodd: “Trauma informed approaches to investigations is basically making sure that the employer is sufficiently trained and sufficiently knowledgeable about the effects of trauma before they start an investigation where trauma may may have been felt by one of the people involved, or all of the people involved, sometimes, if it's significant enough. What it means is rather than just using your normal investigation techniques, that you are very mindful about the effect of trauma on individuals, and particularly on things like memory, recall, how they present during your interviews with them, etcetera, so all of that is taken into account when it comes to things like credibility, to making a decision, etcetera, because what we do know is trauma can have such an absolutely profound impact on people that it will completely dictate how they give their evidence and how they recall things when they're talking to you.”
Joe Glavina: “Can you give me an example of a trauma informed approach, Kate?”
Kate Dodd: “So a really good example is basically making sure that you think about how talking about the event will impact that person. So you're thinking about things like how secure that person feels to be taken back into that memory. You're thinking about giving them control. You seek permission. You don't jump in at the beginning of an interview saying, "well, tell me what happened”, or even just with the questions that you're asking so that you build slowly and sensitively to the crux of the matter, and that you ask permission at every stage before you ask your next question. It sounds a bit daft, but often people will have lost control over what happened to them, or what they've seen, and therefore giving them back control when you're interviewing them is so important, and also really allows them to participate properly in that process, even if it's as simple as very regular breaks, every half an hour, allowing them to bring somebody different into the meeting than you might ordinarily have in. Those types of things can make a huge difference.
Joe Glavina: “Finally, anything else to add, Kate?”
Kate Dodd: “One of the questions that I often get asked is: Is there any words or language that that we should avoid when we are trying to take a trauma-informed technique? Now, there's a whole half-day programme on this, so it's hard to kind of distil, but I would be always encourage people to be very careful of the language that they are using. So, what are we calling the individual who's made the report? Do we call them the victim, or are we calling somebody a defendant? This type of thing, this kind of language, can be really dangerous because it starts to set hares running and makes people feel that decisions have already been made. When you are asking somebody, you shouldn't be using confrontational cross examination techniques, for example. That questioning technique should be entirely conciliatory and done in a very kind, and carefully, and carefully planned manner and the one word I always say people should avoid is "why”. The question "why”, of course, has all sorts of layers of suggestion of, why did you do that? Why didn't you do that? It's almost this idea that that person could be being blamed for the decision that they took at that time. So thinking about that kind of language is really important when we're talking about trauma-informed techniques.”
So, the key message is that complex workplace investigations need careful thought from the outset, both in terms of who conducts the investigation and how sensitive evidence is gathered. Kate and the Employment Plus team are currently working with a number of clients on workplace investigations, including supporting and training those responsible for carrying them out. If you would like help with this, please contact Kate in the first instance – her details are there on screen for you.