Introduction

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.

Decide if remote investigations are appropriate given present circumstances

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:

  • ask whether it is practicable to conduct investigation meetings remotely and to collect any relevant evidence; and
  • determine whether delaying an investigation would risk rendering the process unfair.

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.

Who should investigate?

Employers will need to appoint an appropriate investigating officer. That person must have the following essential characteristics:

  • impartiality;
  • an understanding of what a fair investigation requires; and
  • sufficient time to dedicate to the process.

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.

Keep investigations confidential

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.

Identify relevant evidence and witnesses

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.

Ensure that interviews are conducted fairly and kept private and confidential

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:

  • ensure that only relevant parties receive an invitation to the virtual meeting (so that a third party does not accidentally join the meeting too). Make sure that a password is used for the meeting;
  • ensure that the line or online portal for hosting the meeting is secure and compliant for data protection purposes;
  • ask the person being interviewed or parties attending the virtual meeting to call from a private and quiet room where they will be undisturbed. This may be challenging given the current lockdown circumstances as they may be at home with family or other household members. Employers should explain that the interviewee should attend the meeting alone, unless they have had prior permission to be accompanied;
  • where possible, ensure that all parties join via a video call so that their facial expressions and body language is visible;
  • ask parties to speak clearly, let them ask questions when necessary and confirm their understanding;
  • ask parties attending the virtual meeting to mute themselves when they are not speaking to avoid any distractions;
  • make use of online tools (eg, screen sharing) to refer to certain documents. Employers may send documents by email in advance of the meeting, but there is a risk that these might be shared with third parties without the employer's authorisation; and
  • dress appropriately and maintain a professional appearance and background to preserve the formality of the interview.

Minimise risk of covert recording of investigation meetings

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:

  • at the start of the interview, ask the interviewee to confirm that they (or any companion) are not recording the meeting;
  • remind the interviewee that they do have no legal right to record the meeting. Employers should explain that recording is generally not allowed unless expressly agreed by the parties and highlight that it is also not permitted under their relevant policies and procedures;
  • remind the interviewee that a covert recording may be viewed as a breach of trust and confidence, as well as a misconduct matter warranting a disciplinary action. Employers should explain that covert recording may also be in breach of existing data protection legislation; and
  • explain that they will be taking notes of the meeting and will share a copy of the minutes with the interviewee. Employers should remind them that they may also take their own notes during the meeting.

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.

Be mindful of health and wellbeing of those involved

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).