We would like to ensure that you are still receiving content that you find useful – please confirm that you would like to continue to receive ILO newsletters.
13 May 2020
Decide if remote investigations are appropriate given present circumstances
Who should investigate?
Keep investigations confidential
Identify relevant evidence and witnesses
Ensure that interviews are conducted fairly and kept private and confidential
Minimise risk of covert recording of investigation meetings
Be mindful of health and wellbeing of those involved
The COVID-19 pandemic has changed the ways in which businesses run and there is still some time before it is 'business as usual'. Most employers are grappling with new ways of working, with many of their employees working from home or in other unusual ways. However, it is clear that 'business as usual' issues can and do still arise. Thus, what should employers do if they become aware of an allegation of misconduct or wrongdoing? This article considers whether a remote investigation is the right step to take and what employers should bear in mind if they conclude that it is.
Employers should consider whether the issue or reported incident is serious enough to warrant an investigation without delay. Considering the social distancing measures currently in place, employers must:
If the answer to either of the above is 'yes', the employer should consider conducting an investigation remotely. The ACAS code requires that workplace investigations be conducted without unreasonable delay. Unnecessary delays may affect the completeness and reliability of evidence collected and affect the overall fairness of the process. It is currently unclear how long the COVID-19 restrictions are likely to last. Therefore, it may prove necessary to conduct investigations remotely where the matter in question is sufficiently serious, even if that investigation may be more challenging that would ordinarily be the case.
Employers will need to appoint an appropriate investigating officer. That person must have the following essential characteristics:
Often, a previously uninvolved member of the HR team will be tasked with conducting the investigation. It is generally best to keep the roles of investigator and ultimate decision maker (should a disciplinary or grievance hearing be needed) separate.
Where there is no one in the business who meets the requirements set out above, or where the issues involved are particularly complex or involve a senior employee, employers might turn to specialist legally trained investigators or experienced HR consultants to conduct the investigation.
First, employers must limit who knows about the allegations and the investigation. It is easy for an individual to complain that the process was unfair if information is being spread without good reason.
Once the investigation is underway, employers should ensure that details of the investigation remain confidential. This may be particularly challenging where the fact-finding exercise is conducted remotely.
When sharing data and evidence by email or through other online tools, employers must ensure that all of the platforms and systems are secure and can be accessed by only the relevant parties involved in the investigation. All of the relevant evidence must be kept in a secure format, with built-in protection preventing unauthorised distribution or access.
Parties involved in the investigation should have access to only information that is specifically relevant to them. For example, one witness should not be able to access another witness's statement online; this should be visible to only the investigator. Employers should pay extra attention to the files and locations of online correspondence, emails and other relevant evidence and limit access to these files and locations so that only the relevant parties can review these. Employers may want to consider the use of a secure extranet site, where available.
Employers may also need to collate and review physical evidence or documentation in a hard-copy format. They should consider the ways in which this evidence can be accessed by the investigator without breaching government-mandated restrictions and physical-distancing measures. Employers must also ensure that any hard-copy evidence is securely stored and cannot be destroyed or shared with third parties.
Employers must pay extra attention to ensure security and confidentiality of any personal data and comply with applicable requirements under the existing data protection legislation. They should have procedures in place on how to handle confidential information while conducting a remote investigation and preventative measures in the event of a breach. If the investigator needs to collect hard-copy documents, they will need to ensure that these documents are stored in a safe location. This is particularly relevant as they are likely to conduct the investigation from home, which may be shared with family members or flatmates.
To carry out a fair disciplinary procedure, employers must conduct a reasonable investigation; it is unnecessary to investigate all of the aspects and details of the matter. Employers must ensure that all of the evidence and documents collated by the investigator are strictly relevant to the matter at hand. This is especially important when the investigation is carried remotely. It may be particularly difficult to review a large of volume of evidence.
Similarly, employers should keep the number of witnesses as low as is reasonably possible as it will be challenging to interview everyone remotely. If accounts of those interviewed are consistent and there are no good reasons to believe that other witnesses might have further information, it is unnecessary to interview additional witnesses. By involving more witnesses than necessary, employers may also lose control of information being disseminated to third parties, compromising the confidentiality of the process.
If any of the witnesses are currently on furlough leave, employers should seek advice about the best way to involve them in the process within the rules of the scheme.
Employers must ensure that all of the virtual meetings are held in private and are kept confidential.
Employers are under no obligation to allow the employee to be accompanied at an investigation meeting, but they may want to consider this in some circumstances. Employers should check the wording of their disciplinary and grievance procedures to ensure that their approach is in line with them.
In practice, it will be difficult for employers to ensure that nobody else is present in the room while the meeting is held remotely (especially if this is conducted as a phone call rather than as a videoconference). Therefore, it might be appropriate to allow a friend or family member to accompany the interviewee when they participate in an investigation meeting, if this is reasonable in the circumstances. This approach will, at least, enable the investigator to explain the importance of confidentiality to all participants.
In addition, employers should:
Neither an employee nor an employer has the right to record an investigation meeting, unless both parties have agreed to the recording. It is highly unlikely that an employer's disciplinary and grievance procedures would expressly allow for the recording of meetings. Employers should check the wording of their policies and procedures for any provisions to such effect.
There is a higher risk of the employee covertly recording the meeting when it is conducted remotely. This may be relatively easier using their own devices and other online devices.
To minimise the risk of covert recordings, employers should:
If an employee has a physical or mental impairment that would make taking their own notes difficult or impossible and they have no companion who may take notes on their behalf, employers may decide to allow them to record the meeting. This may be a reasonable adjustment if there is no other alternative.
Employers should keep in mind that evidence gathered secretly by the employee through covert recording of the meeting could potentially be admitted by an employment tribunal in certain circumstances if deemed relevant. Therefore, employers should always assume that they are being recorded and what they say will be admissible in an employment tribunal.
An investigation is usually stressful for all parties involved. It is likely to be even more challenging and stressful in the present circumstances. Parties involved are already likely to be significantly affected by the challenges of working remotely and uncertainty of the current situation. Any investigation is likely to add to this stress and negatively affect the mental health of the people involved. Therefore, investigations must be conducted fairly in recognition of how present conditions affect employees.
Employers should be flexible to accommodate the interviewee's schedule and personal responsibilities. They should check with the interviewee whether they need to take a break in the same way as would be asked during an in-person meeting; however, employers may wish to ask them not to speak to anyone about their interview during such breaks.
Employers must ensure that parties are supported appropriately and that there are regular catch-ups to check on employees' wellbeing. Employers may also guide employees to professional medical help or to other sources of support (eg, an employee assistance programme).
For further information on this topic please contact Karen Baxter or Lucy Lewis at Lewis Silkin by telephone (+44 20 7074 8000) or email (email@example.com or firstname.lastname@example.org). The Lewis Silkin website can be accessed at www.lewissilkin.com.
The materials contained on this website are for general information purposes only and are subject to the disclaimer.
ILO is a premium online legal update service for major companies and law firms worldwide. In-house corporate counsel and other users of legal services, as well as law firm partners, qualify for a free subscription.