EWJ August 62 2025 web - Journal - Page 67
Managing Workplace Investigations:
Common Questions Answered
In recent years, there has been a marked increase in the number of workplace investigations, a trend that
shows no sign of abating. This rise is largely attributable to the growing complexity of grievances faced by
employers within an ever-changing and evolving work environment. Against this backdrop, it is essential
that workplace investigations are conducted thoroughly, fairly and efficiently as failure to do so may
result in a flawed process, exposing employers to the risk of potential litigation.
In this article we take a look at some of the most
frequently asked client questions when it comes to
handling a workplace investigation and how best to
approach these challenging situations.
for employers saving the need to address such queries
throughout the investigation process.
4. Who should conduct the investigation?
This depends on a number of factors including
resources, practical experience, the size of the organisation and the type of complaints at issue. In recent
years we have seen a growing trend towards appointing an independent external investigator, particularly
in cases involving senior employees, complex facts or
sensitive issues. Investigations are notoriously timeconsuming and so by appointing an external investigation an employer can ensure that it frees up some of
its internal resources and ensures the investigation receives the necessary attention and focus. However,
employers need to be mindful that appointing an external investigator does result in relinquishing control
of the process to an external party and so choosing
the right external investigator is key.
1. What should an employer do if an employee raises
concerns but does not wish to proceed with a formal
complaint?
This arises often in practice and is difficult for
employers as in most cases without a formal complaint
it may not be possible to commence an investigation.
However, employers can still support the employee by
directing them to the appropriate policies/handbook,
company supports such as EAP and reminding them
that there are procedures in place to help them resolve
workplace issues. This might ultimately lead to a formal
complaint being made by the employee. Employers are
also on notice of the issues raised and are advised to
consider if the employee is in immediate danger or at
risk.
5. Does an investigator need to meet with all
suggested witnesses?
Throughout an investigation, both the complainant
and the respondent may propose multiple witnesses
to the investigator. However, the decision as to who
the investigator needs to meet as part of an investigation ultimately lies with the investigator and involves
assessing whether the proposed witness is likely to
have information that is material to the allegations
under investigation. We advise employers to address
this point within the Terms of Reference governing
the investigation.
2. How to determine which policy applies to a
particular complaint?
If there is any ambiguity surrounding an employee’s
complaint, it can be helpful to meet with the employee
to discuss their issues in further detail. This will assist
the Company and the employee in identifying the
most appropriate policy bearing in mind that in some
instances one or more policies could potentially apply.
Employers also need to be mindful that complaints
that involve broader issues, such as breaches of legal
obligations or health and safety concerns, may constitute a protected disclosures or whistleblowing complaint, which require different handling and offer
specific protections.
6. How should an employer proceed if an employee
goes on sick leave during an investigation?
The first step should be to refer the employee to
occupational health to assess whether the employee is
fit to participate in the investigation process. It is often
the case that an employee may be unfit for work but
fit to take part in meetings or interviews related to the
investigation, even if they are not fit to return to their
normal duties.
3. Are Terms of Reference strictly necessary for an
investigation?
While certain Codes of Practice including the Code of
Practice for Employers and Employees on the Prevention and Resolution of Bullying at Work provide
that an investigation should be governed by Terms of
Reference, it is not strictly required from a legal perspective for all workplace investigations. In practice,
Terms of Reference are however recommended as
they can help put structure on an investigation, foster
a sense of fairness, manage parties’ expectations and
even prevent the investigation from broadening in
scope. Where there are clear Terms of Reference
there can be little dispute over matters such as timings
and who gets copies of what documents where these
are clearly outlined in the Terms of Reference. This
can ultimately result in a time and cost saving exercise
EXPERT WITNESS JOURNAL
If occupational health advises that the employee is not
fit to participate in the investigation, the employer
should consider the circumstances on a case-by-case
basis. If the period of incapacity is likely to be short, it
may be reasonable to pause the investigation temporarily until they are fit to engage. However, if the
employee is likely to remain unfit for a prolonged
period, the employer may need to consider what
steps, if any, can be taken in the employee’s absence
e.g. interviewing witnesses or collating other relevant
material.
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