Out-Law / Your Daily Need-To-Know

Conducting investigations remotely - key points

Out-Law News | 27 May 2021 | 9:33 am |

Katy Docherty tells HRNews about the challenges of conducting investigations virtually

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  • Transcript

    Suppose an employee raises a grievance and it needs investigating. How do you do that when everyone is working from home? Is a remote investigation the right approach to be taking? If it is, how do you maintain confidentiality? These issues are in the news after the publication by Acas of a report into the cost to businesses of failing to manage conflict effectively – a problem which is complicated by the pandemic.

    The report is called ‘Estimating the Costs of Workplace Conflict’ which calculates that workplace conflict costs UK employers £28.5bn every year, an average of just over £1,000 for every employee. That estimate is based on the total cost to organisations in handling workplace conflict that includes informal, formal, and legal processes as well as the cost of sickness absences and resignations. The report shows that nearly half a million employees resign each year as a result of conflict, and that handling disagreements and complaints early before employment relationships are damaged can help save a lot of money. The report highlights that conflict will be more likely as organisations adapt to a ‘new normal’ following the Covid pandemic as problems which have been suppressed during the crisis will start to rise to the surface and will need an effective response from employers.

    People Management reports the data and highlights how staff turnover was the single largest expense to employers, with the total cost of ending employment relationships – either through resignation or dismissal – and replacing employees adding up to £2.6bn a year. Nearly half a million employees resign each year as a result of conflict, many of whom are dissatisfied with the way their grievance has been managed. 

    So, lets consider the first stage of that process which is the investigation into the grievance and, given the pandemic, this is definitely more challenging. One of the lawyers advising on that is Katy Docherty who joined me by video-link from Glasgow to discuss it. 

    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.”

    That report by Acas is called ‘Estimating the Costs of Workplace Conflict’ and we have put a link to it in the transcript of this programme. The other angle to this – which is covered in the report – is resolving conflict through private mediation and we will look at that in some detail next week, so watch this space.

    LINKS

    - Link to Acas report: ‘Estimating the Costs of Workplace Conflict’
    Estimating the costs of workplace conflict | Acas