Workplaces are fraught with new sensitivities and complexities. The number of employment rights under which an employee could make a tribunal claim has more than trebled since the 1980s – and now, the muddle of Covid-19, the pressures from movements such as Black Lives Matter and #metoo have brought yet further potential for disputes, activism and disruption.
The question for all employers is whether their approaches to grievances and conflict have kept up.
Through all the current challenges employers need to be building and maintaining positive workplace relationships as the basis for rallying and recovery. That means encouraging a culture of fairness, openness and trust. And the critical, fundamental pillars when it comes to dealing with those most testing and public of disputes are workplace investigations. When there are loose standards, processes that are skipped over, employers get caught out – and will increasingly get caught out – meaning tribunal and appeal failures and bigger payouts, even when the case had seemed to be straightforward.
The threats to reputation, workplace harmony, engagement and productivity, are more varied, serious and difficult to resolve than ever before: the heightening of awareness of discrimination and inappropriate behaviour of any kind; fears over unconscious bias; greater potential for secretly recorded conversations; the handling and exchange of sensitive data. All of these tensions encourage the build-up of hidden problems. There are more conversations that people are unwilling to have, issues they’d rather not broach. Organisations become more defensive and less resilient at a time when organisational resilience is at a premium.
The solution, on one level, is simple for HR. Keep to the highest standards and professionalism when it comes to managing employee relations. Be able to trust those standards and the approaches taken so everyone has confidence in fair and reasonable treatment. No short cuts. No relying on ‘that’s how we’ve always done it’.
In putting together our own best practice standards, we’ve identified three ‘golden threads’ that need to run through every aspect of an investigation:
- integrity – demonstrating independence, impartiality and fairness; we are clear about a commitment to being guided by the evidence and eliminating bias; with awareness of the impact of social identify on judgement;
- transparency – demonstrating openness and honesty with stakeholders, in order to give confidence in the fairness and rigour of the process, while maintaining appropriate confidentiality. All our reports are reviewed and quality assured;
- and, proportionality – at all times, not only to the timeliness and cost of the process, but to the volume and relevance of the evidence obtained in relation to the severity and complexity of the issues and the likely outcome and impact on the parties and organisation.
We see evidence continually of the dangers of weak investigation practice in tribunals. There are no processes in place, few or no internal standards; there’s no training and so policies are misinterpreted or not followed. In particular, cases collapse because inexperienced investigators may not fully understand their role and purpose when presented with a case. An investigation should be an impartial, fact-based process where a conclusion is made based on the evidence. Some investigators focus too heavily on the personalities involved to make a judgement as to whether they are likely to have behaved wrongly. Others start making their judgement during the first interview, reaching a conclusion before all parties have even been spoken with and evidence obtained. In doing so, they form a biased mindset which unconsciously looks to to find information which supports their judgement and filters out any evidence to the contrary. In such cases, key information can be ignored, and some evidence may never be obtained because it is deemed unnecessary when a conclusion is already made.
Another key cause of the failure of investigations is low levels of rapport and negative conversation management. If an investigator reaches an early conclusion there’s an impact on subsequent interviews – leading questions, pleas for mitigation aren’t taken seriously, defensive behaviours, irritation and anger.
These are ugly – and embarrassing – situations that can be avoided easily, with acknowledgment of the new level of threats and commitment, among both employers and providers, to the need for high standards. Not only are standards needed to ensure fairness, for protection for both sides from injustice, but they’re also the means to maximise the speed, efficiency and impact of everyone involved, from intake to appeal.
Richard Peachey, Workplace relationships consultant – CMP