It’s no secret that workplace conflict can have a negative impact on an organisation and its employees. Whether it’s a grievance, disciplinary or bullying investigation the road to resolution can be time consuming and costly. In fact, the CBI estimates that it costs UK business around £33 billion per year and 370 million working days.
The process can also be a drain on leadership time and many employers overlook key aspects and documentation when beginning proceedings. Where an investigation is required, it’s worthwhile investing time and effort upfront to ensure the investigation gets off on the right track and problems don’t occur further along the line. Putting a few key measures in place can make a big difference.
Developing terms of reference
One important area which tends to be overlooked time and time again is a comprehensive terms of reference document. This should form the foundation for any workplace investigation and much like an overview, sets out the core components and people involved in the investigation. Essentially, the document needs to give direction to the investigator as well as explain the purpose of their report for the organisation.
Terms of reference are fundamental to the way an investigation unfolds and without a solid document in place, organisations can find their attempts to resolve situations failing, or even causing more problems. Additionally, terms of reference can prevent drawbacks such as misunderstandings, unintended breaches of privacy, and negative effects on relationships. As well as establishing an understanding of what is required and by when, the terms of reference also creates an investigation plan. For instance, it can include scheduled witness meetings and interviews, resources available for the investigator, deadlines and what is expected of the investigator.
Some areas to include in the terms of reference document can include:
- Details of commissioning manager, investigating officer and HR support
- Allegation(s) or concern(s) to be investigated
- List of proposed witnesses / sources of evidence
- Proposed timeframe
- Relevant policies and procedures
- Purpose for which report will be used
Capturing the allegations
There’s a real art to getting the wording of the allegations or complaints right in a terms of reference document. As the document sets the course of the investigation, it’s important that the information presented isn’t too vague but on the other hand, isn’t so specific that it prevents the investigator from thoroughly exploring the case.
Ultimately, organisations need consider whether the investigator will have sufficient detail to understand what they are required to investigate; and whether the subject of the investigation can properly understand the case against them. So, it’s really important that organisations take the time to spell out allegations in clear detail – including dates, times, names and the act complained of.
Inevitably, as the case progresses, it might well be that new allegations come to the surface or allegations require amendment during the course of the investigation. If this does happen, then it’s crucial that the terms of reference are updated and amended. It’s also important to consider whether any subject of the investigation has had a chance to answer the allegations as they have been reframed.
If an organisation is dealing with a complex case involving lots of allegations, then it’s recommended that managers consider holding a case conference. This might involve the case investigator, commissioning manager, HR advisor and even a legal advisor sitting around a table (physically or virtually) to establish the terms of reference. Having that early case conference and strategy discussion is a really worthwhile thing to do.
Anonymity and reluctant witnesses
Having established the terms of reference, organisations will then have to go away and source evidence. Reluctant witnesses can be a real challenge, especially for in environments such as healthcare or finance where staff are encouraged to raise concerns anonymously. While this creates a safe environment for staff to raise concerns without the fear of backlash, it can also presents a real dilemma once the issue needs further investigation. For instance, if the organisation wanted to take forward disciplinary proceedings, it may be difficult to do so without specific witnesses who are willing to put their name to the concerns being raised. Not only does this undermine the fairness of the disciplinary process but also the case against the subject of the investigation. For the process of raising concerns, anonymity is very useful but for the purpose of dealing with those concerns it can be problematic.
Generally, when dealing with this type of situation employers need to do everything they can to encourage anonymous witnesses to step forward and put their name behind their evidence. The best ways to do this are by offering protection, being clear about the support the organisation can provide, emphasising the importance of upholding professional duties and being clear where action is needed to prevent recurring incidents.
Audit trails and record keeping
It’s also vital that organisations store any correspondence about the dispute securely, making sure that records, notes, and minutes are always recorded.
Disputes in the workplace can at times be unavoidable and to some extent, a normal and expected occurrence. Although these can seem like lengthy and complicated processes, it’s important to invest time from the outset so that everyone involved has the correct expectations and processes are in place to minimise risk.
This provides summary information and comment on the subject areas covered. Where employment tribunal and appellate court cases are reported, the information does not set out all of the facts, the legal arguments presented and the judgments made in every aspect of the case. Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, we cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.