Top Tips for Investigating Allegations of Serious Misconduct
Penny Macmillan, Employment Law Specialist at JSB
- The aim is to achieve a reasonable investigation and not one at a forensic level
- Don’t forget the importance of preliminary enquiry/an initial investigation – it may clear things up quickly and avoid expensive legal mistakes
- Decide whether a formal investigation is needed to collect the facts – there should be sufficient information which indicates an investigation is needed
- Commission an independent investigation where there is an allegation of serious misconduct, a dispute on the facts and a formal investigation is needed
- Choose the investigator carefully - sometimes good recruiters make good investigators
- Ensure the investigator is at least as senior as the person whose conduct is under investigation
- Consider bringing in an investigator from outside the organisation if the investigation involves a senior employee or the matter is highly confidential
- Train the investigators – give them support, time and resource
- Set out the allegation to be investigated clearly in a ‘commission’, which defines the investigator’s role and the ambit of the investigation
- The investigator should stick to the commission, and collect relevant facts and opinions
- The investigator’s task is to collect the facts and make findings of fact on the “balance of probabilities” if possible – it is not to prove a case
- Explain the process to those who will be interviewed during the investigation
- A golden rule – follow your organisation’s procedures
Penny is a practising solicitor specialising in employment law with over twelve years’ experience of contentious and non-contentious legal work in the employment field, including TUPE, unfair dismissal, discrimination, whistle blowing and drafting employment contracts, policies, procedures and handbooks. Penny is also Head of the Legal Department at The Race Equality Centre and delivers workshops and seminars on a wide range of employment law and best practice subjects.
