Out-Law / Your Daily Need-To-Know

Conducting investigations remotely possible but challenging, warns lawyer

Out-Law News | 12 Apr 2022 | 11:28 am |

Katy Docherty tells HRNews about ensuring fairness when conducting investigations remotely

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  • Transcript

    What should an investigation into employee misconduct look like? Who should be involved in conducting it? What happens after it has been completed?

    These are questions raised in an article by Personnel Today. They link it to the Downing Street parties saga and Sue Gray’s independent report which is due to be published in full at some point in the coming weeks. They make the point that ‘Partygate’ has raised the profile of internal investigations and the important role they can play in getting to the truth of what has happened and how those facts may pose both financial and reputational risks to employers. They say employees’ allegations, complaints and concerns are becoming more present in public awareness and mistakes can make a difficult situation worse. By way of example they point to the initial appointment of top civil servant Simon Case to lead the investigation into the Downing Street parties. As we now know, he had attended some of the events himself which, of course, meant the decision to appoint him as the investigator was a mistake.

    The article gives a fair account of the fundamentals of conducting an internal investigation but the point we want to highlight is the different approach that’s needed when it comes to conducting investigations remotely. These days, with so much hybrid working, conducting investigations remotely has become increasingly prevalent.

    So, how do you ensure a fair investigation into a grievance or a disciplinary if it is conducted remotely? To help with that I spoke to Katy Docherty who joined me by video-link from Glasgow: 

    Katy Docherty: ”So, a query that we do often receive from our clients, and have received much more frequently during the pandemic, is employees asking whether they will be able to have as fair an investigation into a grievance or a disciplinary if that investigation is carried out remotely. One of the first pieces of advice that we always give to clients is you do need to take that question seriously and consider whether an investigation carried out remotely is the most appropriate way to deal with it because there will be times when employees are going to be prejudiced by everything being carried out remotely. For example, if there are difficulties in reviewing physical evidence and such difficulties might merit postponing the investigation until it can take place in person. However, employers do also have to be mindful that the Acas code itself does state that an unreasonable or undue delay in carrying out an investigation can result in unfairness. So, employers also have to weigh up whether a delay or a postponement until this can take place and person cause any prejudice to the individual or make the process unfair? So, employers need to consider the answer to that question on a case by case basis.”

    Joe Glavina: “How do you make sure that interviews are conducted fairly and kept private and confidential?”

    Katy Docherty: “So, as you point out Joe, confidentiality is a key concern for any investigation into any grievance or disciplinary and during the pandemic employers are finding that they have to think a bit differently about how they maintain that. So, the classic example is where an investigator is carrying a witness call, for example, and they are doing so from their own home and the witness is in their house and practical points such as make sure that nobody else is in the room when you are when you're carrying out that investigation call, making sure that the witness is alone is really important for maintaining the confidentiality and integrity of what's being discussed. Other points as well that employers maybe hadn't really had an issue with when everything has been done from the office. So, ensuring that if hard copy documents are being sent out to an investigator this is done securely with strict protocols for what to do with those documents once they've been reviewed. If a data site is being used for uploading documents, ensuring that it's password protected, that only those who need to have access for the investigation do have that access, that's very important, as well. So, ensuring the integrity of documents and data that are being reviewed is really crucial and is just as important as making sure that the conversations are still happening in private, which is what would have been happening when in the office. So, managers do need to be a bit more careful about it because they are obviously in a different setting from when they would be used to the privacy of the office. They're now having to manage the fact that in a remote investigation potentially everybody is in a less secure environment. So, it's about flagging that to witnesses, to employees, who are being interviewed and making sure that everybody takes appropriate states to maintain that confidentiality.”

    Joe Glavina: “It must be very tempting for employees to covertly record the meeting which is very easy to do these days simply with a mobile phone. How do you manage that?”

    Katy Docherty: “Quite interestingly, a query that I've had a number of times over the past few weeks is whether employees who have covertly recorded meetings should be disciplined for having done that, or whether the employment tribunal, if there's litigation pending, will accept that evidence. I think the first point that I would make is that, you know, we'll talk about some of the practical ways that you can mitigate that risk, but I think the best piece of advice for all managers is always assume that you are being recorded even if you tell an employee not to record you. So, you shouldn't be saying anything that you wouldn't be proud to be heard in the tribunal anyway, but it's worth bearing in mind that even if a recording is obtained covertly there will be circumstances in the employment tribunal will still admit that evidence so it's very important that you remain professional at all times and always behave as though you're being recorded. So that's the first point. That said, I do think it is important for managers to kind of lay down the law at the start of any investigation meeting and make it clear that there is no legal right to record what's taking place. Double check your policies and if your policies make that clear then you can reiterate that. You may want to tone this down, depending on the sensitivity of the interview that you're conducting, but I think if your policy sets out that it could be a disciplinary issue or a breach of trust and confidence, if something is covertly recorded, I think it's very well worth reminding employees of that fact and you also have to remind them that they could be in breach of relevant data protection legislation if they if they do record. So, it's certainly worth setting those ground rules, as it were, and making it clear that it's not permitted, but remembering that there is always still a risk that employees will do it and so you should always behave as though you are being recorded. So, there are ways to mitigate the risk, but not entirely eradicate it.”

    On the subject on investigations, to help managers we have created an e-learning course for managers which covers all the basis you need to know when it comes to conducting investigations and disciplinary hearings, including appeals. It is one of three modules in our Managing Essentials series. If you would like to take a closer look you can - we offer a free demonstration so please do get in touch if this might be something you want to consider for your staff. Contact details are on the screen for you.