Conducting an Investigation
Presented by
Alexandra Goldie
Employment Law Adviser
Three Basic Principles
• Be reasonable
• Be consistent
• Be nice
Vicarious Liability
Equality Act 2010, section 109
• Anything done by a person in the course of their employment must
be treated as also done by the employer.
• It does not matter whether that thing is done with the employer's
knowledge or approval.
Statutory Defence
• It is a defence for the employer to show that it took all reasonable
steps to prevent the employee:
– from doing that thing; or
– from doing anything of that description.
How to Deal with a Complaint
• Informal resolution
• Formal complaints
• Be seen to be taking action!
Case Study 1
One department regularly send joke emails around to each other. The
latest “joke” contains reference to goats and Africans, and contains
crude cartoon like pictures. One of the recipients of this email, Kato, is
from Africa. He doesn’t raise any issues, but his colleague and friend,
Shona, does. Shona is from Edinburgh.
Does the Company need to deal with this given Kato had no issue with
the email?
Conducting the Investigation
• Separate investigating officer
• Statements or minutes
• Signed
• Other relevant evidence
• Interview accused person last
What do you ask?
• Who?
• What?
• When?
• Where?
• Why?
Reluctant Witnesses
• Employees reluctant to assist in an investigation.
• Obligation of good faith or fidelity owed towards the employer.
Anything else to consider?
• Are there any special circumstances to be taken into account?
• What evidence have you got?
• Check informant’s motives
• Consider possible explanations & check them out beforehand
• Need to suspend?
Case study 2
Josie is a packer on the biscuit production line. She comes into your
office and claims that John, her line manager, has just touched her
inappropriately from behind when she bent over to lift up a new empty
box. She says that he often makes inappropriate sexual comments but
this time he has gone too far.
As HR Manager, what do you do?
Whistleblowing
• The information disclosed must, in the reasonable belief of the
worker, tend to show that one of following has occurred, is occurring,
or is likely to occur:
– A criminal offence.
– Breach of any legal obligation.
– Miscarriage of justice.
– Danger to the health and safety of any individual.
– Damage to the environment.
– The deliberate concealing of information about any of the above.
Case Study 3
As John has been suspended pending an investigation into the
allegations, Josie is being managed by David (John’s manager). He
comes to you and says that Josie has a poor attitude and talks back to
him. He says that she is not pulling her weight and is lazy. He wants to
take disciplinary action.
Do you have any concerns?
Case Study 4
When meeting with John to investigate the allegations of sexual
harassment, he says that this allegation has only been made because
he told David (his line manager) that Josie had not been wearing her
hair net or gloves when handling the biscuits despite being informally
warned about this a number of times.
What does this mean for your investigation?
Negotiated Settlements
• Settlement agreements are legally binding contracts that waive an
individual's rights to make a claim covered by the agreement to an
employment tribunal or court.
• Settlement payment.
• They are voluntary.
• They can be offered at any stage of an employment relationship.
Admissibility of Offers
• The admissibility of settlement offers and discussions in legal
proceedings is now regulated by two provisions:
– the ‘without prejudice’ principle, and
– the admissibility provisions on settlement agreements set out in
section 111A of the Employment Rights Act 1996 (an amendment
to the 1996 Act which was introduced in 2013).
Protected Conversations
• Section 111A of the Employment Rights Act 1996
• The offer made and any subsequent discussion about it may not be
admissible as evidence in any subsequent unfair dismissal claim.
• Provide a similar protection to the ‘without prejudice’ principle but
apply only to:
– settlement offers and discussions that relate to the ending of an
employment relationship (pre-termination negotiations); and
– unfair dismissal claims (including constructive unfair dismissal
claims) brought to an employment tribunal.
Without prejudice
• ‘Without prejudice’ - a common law principle which prevents
statements, whether written or oral, which are made in a genuine
attempt to settle an ‘existing dispute’, from being put before an
employment tribunal or other court as evidence in legal proceedings
between those parties about that dispute.
• In order for settlement discussions and agreements to be protected
under the ‘without prejudice’ principle, there must be:
– an ‘existing dispute’ between the parties and a genuine attempt
to settle that dispute, and
– no ‘unambiguous impropriety’ in the conduct of the parties during
the settlement discussions.
Recent Developments
• Harassment of employees by third parties repealed.
• Quality Solicitors CMHT v Tunstall (2014)
Top Tips
• General awareness
• Equal Opportunities & Grievance Policies
– Awareness
– Training
– Monitored
– Followed!
• Lead by example
– Culture
– Action – proactive not reactive
• Audit trails
• Seek advice
Any Questions?