Employment Investigations - Annual Review Round-UpPosted in : Webinar Recordings on 4 February 2020
Following her very successful Annual Review season, Caroline McEnery, Managing Director at The HR Suite and Adjudicator at the WRC, joins us to tackle some of the many, many questions that arose from her sessions at the Annual Review of Employment LAw 2019 conferences on 'Best Practice Investigation Process and What a Good Investigation Report Looks Like'.
This will include questions around:
- The role of the investigator
- The terms of reference
Scott: Good afternoon. It's just turned 12:00. My name is Scott Alexander. I'm from Legal-Island. Today, we're having our third webinar of the year for those who have been keen to listen to us. And today's guest is Caroline McEnery from The HR Suite.
If you attended The Annual Reviews of Employment Law in November, you'll know that Caroline covered investigations, and that's what the topic of today's webinar is about.
Caroline is the managing director of The HR Suite and an HR employment law expert. She's former member of the Low Pay Commission and is also an adjudicator in the WRC. So, fairly experienced there, I would say, and a lot of experience investigating complaints and grievances and such like and disciplinary issues in workplaces in particular. So that's what we're going to be focussing on today.
Caroline: Hi, Scott, and hello, everybody.
Scott: We have four key areas that we're going to focus on today. We're going to look at the role of the investigator, terms of reference, witnesses, and note-taking. So if you think about those, if you have any issues around those, that would be terrific.
We also have a workshop coming up, if you go to our website, on investigations on the 26th of February, which is almost sold out. And I'm seeing questions coming in already. That's very, very good. So you just go to legal-island.ie/events and you can get those.
Investigation Meetings – should they be conducted on an individual or group basis?
So, before we kick off with the general stuff to put those four areas into context, Caroline, we have 45 minutes to deal with these issues. There was one that came in just at the beginning of the week from a customer, and it says,
"Two colleagues raised a grievance against a manager alleging bullying behaviour. I don't think it will lead to dismissal of my colleague", this is another manager, "but I found it strange that the investigating officer interviewed both complainants at the same time and they signed a joint statement. I've never come across this before in almost 30 years in management where witnesses were not interviewed separately. Is this in breach of natural justice rules or even the Irish constitutional right to a fair trial?"
Caroline: Great starting question. I suppose the whole idea of an investigation is we're going to gather factual information to decide if it warrants going to disciplinary action or not. Everything we do during the process of that investigation from the starting point of setting the terms of reference, from agreeing what the allegation is, to deciding who we speak to, what we say to them, whether they're the subject of the complaint, the complainants are the witnesses, all has to be objective and neutral so that you're not seen to be coercing or persuading the parties, that you've made predetermined judgement.
For me, I'd be very concerned about the fact that the two people were interviewed together, because there's a difference between the person being allowed, which they are, to have somebody with them as a support to them. But if you interview the two people who are making the same allegation, it's very hard as an investigator when you're asking questions to ensure that they're independently answering your questions.
And also, a huge part of investigation is identifying collaboration of evidence to either sway you towards one side of the pendulum or the other. And if you're asking both parties the same question and both parties are answering it collectively, etc., even to take minutes, I would argue, it would be very difficult. So I would strongly advise to separate them.
And I would say that the subject of that complaint would have a very strong case to say, "I didn't get fairness in line with the rules of natural justice, or indeed the constitutional fairness that was outlined". Everybody has that right to protect their good name and everybody has a right to respond to allegations that are made, but that should be done independently, and I wouldn't encourage that at all.
I think it's a very good question, and it's one that often these investigations . . . what seems like an allegation when we start out . . . I always say we have to deem the person innocent until proven guilty. And that innocence, I suppose, by having two parties in the room at the one time that are both making similar allegations, they are only allegations at that time, but it could be argued that by combining them, what one person was saying and the other person was saying now end up being one and the same. So, again, I would strongly advise against that.
Scott: Yeah, I've certainly come across in the past where groups of employees have gone into the boss's office and said, "Look, we've got a complaint about something. You've got to do something about Scotty because he's doing our heads in", or whatever. You do get those collective grievances, if you like, but it's still better to separate them out and say, "Right. We'll see what each of you is going to sound about", because you get this kind of groupthink mentality that happens. Not quite "Lord of the Flies", but you'll get people that will come forward, you'll get a ringleader who will influence somebody, and that means that the allegations become twisted.
Caroline: Yeah. And bullying is a very serious allegation. We know that the legislation defines it as repeated inappropriate behaviour. But we also know that if somebody is allegedly having been bullying somebody, it can have a lot of reputational damage and it can also undermined their position.
In this case study, the person is a manager. So, for two people to have an issue, I think the investigator would be much better off to say, "Look, I'll investigate them maybe in the one report if the company insists on that". But if it was me and I was advising the company, I would say, "As the investigator, I'm better off doing two separate reports. There are two separate pieces of evidence going to be gathered to suit the individual complaints".
Because what could be found is that it's upheld to do with one person and not upheld to do with another. And one person just ends up feeling that they want to support that person, and rather than act as a support via being a witness, they end up saying, "Well, I'll agree that the same happened to me".
So you're muddying your own waters to try and ensure that you've got a really clear investigation process, clear allegations, clear findings, and very clear in terms of what you found based on that fact-gathering process.
Scott: Okay. Well, thank you very much, Caroline.
How to Repair the Working Relationship after a Complaint
Following up from that, there was a second part to the question that came in. Also, whatever your advice on the above", which is it's dodgy, "the manager will probably have to go back to working with the two employees". It's not that serious, he reckons, that it'll lead to any kind of dismissal.
So even if the allegations are extreme, they're all going to have to work together.
Do you have any recommendations for helping putting the working relationships back to normal?
So there's been an investigation. Maybe something's happened, maybe a warning. What would you do about putting the relationships back together? Because I think a lot of employers forget about that. They've been through the process, you're keen, you're happy with that. That's where you're comfortable, working to the process, but at the end of it, you've still got . . . well, in this case, three employees who aren't getting on.
Caroline: I suppose before I'd ever start an investigation I would check that the internal informal process has been firstly exhausted. And generally, the informal process is in line with the S.I. 146, which would recommend that there is an informal option that the employee will try and talk to the person to nip the issue in the bud themselves.
And sometimes when you signpost the employee and talk it through with them, what they say the behaviour was . . . using the example here of bullying, when you actually sit down and you talk it through with them, it could be a case of what they're actually telling you is actually performance management. And what they've done doesn't have any implication of bullying in it. However, signposting them is very important, that informal route.
And the second area I'd always try and revisit before we get into the formal process of investigation is mediation. I suppose I'm a big fan of the benefits of mediation, particularly when it's interpersonal conflict between individuals or individuals and their manager.
Mediation is a bubble. We try and see, "Can we resolve it?" And basically, we try and agree principles, because oftentimes, it's that blue-sky opportunity to try and have a safe space for the parties to talk through the issues from each of their perspectives. And generally, there are a lot of aha moments for the other person when they hear from the other person their perspective on things.
I'd often say to people, "If you don't do mediation before the formal complaint investigation, of course, you often need to do mediation afterwards", because that aftercare piece is really important.
Not alone at the end of the process, but during the process as well because we think sometimes, "Okay, if somebody makes the complaint, we really look after the person who's made the complaint. We ensure that they have the employee assistance program available to them. We help them know that they can go to HR, their manager, etc.", depending on the size of the organisation. But we often forget is that the subject of the complaint is equally innocent and requires the same level of support.
So I would say make sure you think of aftercare before and during the process and after the process. Mediation, I would advocate as being a very helpful process to help the parties draw a line in the sand to say, "Okay. The process has now concluded. Let's identify how we're going to ensure we all work together going forward".
If you don't do that, it's a bubbling volcano under the surface that's going to explode much worse if we don't remedy it, and I think that's a very important approach to take in terms of managing the relationships.
A lot of the time, the person who has . . . using the exact example we have there, the person who could have been that subject of the complaint could feel so hard done that those two people made such a serious allegation, and maybe the allegation wasn't going to be upheld, that he then ends up raising a grievance. And all of a sudden, you've got the amount of time, the amount of distraction away from the day-to-day, and the relationship damage.
So the sooner we can, I suppose, intervene as HR professionals to nip things in the bud, the better.
Obviously, investigations have to happen in certain incidents, but there really should be a last resort. And when interpersonal conflict is involved, that aftercare piece is very important to make sure that, as best we can, we help remedy that relationship to make it as professional as possible.
We have to also think of the wider team to make sure that that doesn't impact them either in terms of taking sides and other overflow issues by nipping it in the bud early.
How to Deal with Uncooperative Witnesses
Scott: We're getting a number of questions coming in, thanks very much, along this line, so we won't to stick entirely to the agenda. There was one in there just on those witnesses.
What if they won't attend because, say, they work for a client or a customer of the employer and they just won't attend meetings? What do you do? Is it just impact on your investigation that you can do, but it means that you may not have evidence? So what do you do if you won't get somebody coming forward?
Caroline: Yeah. I suppose we can't force customers, previous employees, etc., to be involved. But I'd always invite anybody that either party would suggest that I should speak to. If they would suggest there are 20 people that I need to talk to, I would take a sample of those people rather than maybe needing to talk to all 20, unless there was a very good reason for it.
I think the importance of the witnesses . . . even if they say they're not going to cooperate or they're not going to get involved, I generally try and meet them and say, "Look, will you meet me anyway and just establish facts for me in terms of timing, etc.?" And generally, when you meet them, then with the art of asking the right questions during the meeting, they generally end up telling you a lot more anyway.
So I would say do your best to try and even get them to commit to doing a factual effort with you if they don't want to get involved. Again, I'd always ask, "Why not?" if they don't want to get involved, because if somebody has asked them not to, etc., again, I would probe a lot in relation to that rather than just taking it that the person says, "Sorry, I don't want to be involved".
I'd go definitely a couple of steps further than that to say, "Look, part of our whole ethos in this company is we want to treat people fairly, and your contribution is going to help in that process. So we expect as an employee that you're going to do this and kind of ensure that you're going as far as you can".
As I said, it's much harder when it might be a member of the public or it's a customer, but if it's another employee, I'd be encouraging it as much as you can, but understanding at the same time you can't force somebody.
Scott: Yeah. I mean, you're not going to get them going to the adjudication service and sitting in front of you either. So it's difficult if you don't have the evidence to take action, and that's one of the problems there. You can't really force anybody to do it unless they have some kind of fiduciary duty as a director of the company or something. You're not going to force them.
What about an employee, though? Do you have a bit more pressure? There are very few procedures I've come across that say that you have to be a witness.
Caroline: Agreed. Like I said, even if it was to enforce that, it would be very difficult. I think your challenge, though, would be to understand the why. Remember, as an investigator, your whole aim is you've got the allegation and you can draw inference from whatever you feel is appropriate to draw inference once you're doing it in an objective way.
So, for example, if other witnesses would say to you, "Look, that person is not cooperating because they're afraid, etc.", I'd always put that to them to say, "Look, I need to put this to you because it's come up as part of the investigation and I'd like you to comment on it". And a lot of the time, even if they say they're not going to get involved, they end up getting involved to clarify something that's untrue or do a statement of fact, etc.
Again, I feel that the ethos of any company values statement or anything that we do as employers now is all about encouraging that dignity and respect to all your colleagues. And to me, that fundamentally means that people are being treated fairly. And people's contribution to that investigation I would be emphasising hugely to try and get them to contribute.
But I think also the investigator has to be making a decision as to who is appropriate to hear as a witness rather than, as I say, the investigation going on three months because you're waiting for people to come back from summer holidays and there are 10 people in the department and you feel you need to speak to all 10.
I think you need to be clear on what people's contribution will be. I would say you don't have to meet everybody. You can do some telephone interviews, etc. Obviously, it's better from a body language perspective to meet key parties without doubt, but somebody who might be just collaborating a piece of evidence, you might do that.
The other thing I would say is always feel that you can, because you can, go back and revisit different witnesses if you find out more information in the interim.
A lot of investigation reports I read, and I might be the outcome manager, people . . . I would say, "That obviously was completely conflicting in terms of evidence. Did you put that to them?" And people will say, "No. I stopped there because I said there was no point in continuing to go back". If it's a fundamental piece of the investigation or a fundamental crux on terms of the allegation and it pivots on, "Could this be true or not?" you need to clarify and give all the parties the opportunity to contribute and to convince you one way or another by giving their view of that.
So the witnesses subject to the complaint and the complainant all need to make sure they've got their right to be heard and that right to make sure that they've contributed.
Yet at the same time, one of the key things for witnesses is the confidentiality. Again, sometimes when parties are involved as witnesses, one of the first things you will do is explain and stress the issue around confidentiality, and should that be breached, it will result in their being subject to disciplinary action.
The wider you communicate or the wider you involve people, you need to be just all the more conscious of the confidentiality because that could end up jeopardising the process if you don't emphasise that from the outset.
Clarifying the Role of the Investigator
Scott: Okay. Well, let's move away slightly from that. There are a number of questions coming in just about the investigation process, which we'll come back to.
But the role of the investigator, in general, could you maybe just clarify the difference between fact-finding and information gathering, and is one approach preferred to the other?
Caroline: So a lot of this will crux on what is the allegation and also, in terms of ensuring that you're clear as the investigator, the parameters of your responsibilities.
So the fact-finding, I suppose, and fact-gathering has come up a lot in case law where cases like EG v Society of Actuaries in Ireland highlighted the fact there was no obligation to cross-examine witnesses or to allow that to happen when the investigation was just fact-gathering only. And that was also kind of reaffirmed by other decisions from the higher courts.
As a result of all those cases, the element of the amount of need to facilitate cross-examination of witnesses and the range of fair procedures in line with natural justice really, I suppose, that's where the difference lies.
And if you are just fact gathering only, it's a much more limited remit. So you're basically establishing the facts and you're basically going to say, "Based on my investigation, this happened or that happened". You're going to be stopping short at that. Whereas, if you progress on to the next stage of the process, then it's going to be the disciplinary. They're invited again to the disciplinary process, and then they have the full range of natural justice available to them at that stage.
For some allegations, for example, if somebody didn't clock in or somebody was late, etc., you're going to have to be sensible about the fact that you're not going to maybe draw the process out any longer than it needs to be, but there still needs to be an investigation to see if there are any mitigating circumstances, etc., needing to be taken into account.
So what's most important, I would say, is that in the terms of reference, you clearly outline which option you are doing as an investigator in that process and making sure that you stick to the scope that you've been asked to follow.
What I find is if it is an inexperienced investigator, they start to . . . their CSI hat starts to be enlisted, and the next thing they're going way outside of the remit that they were asked to do and they've become the judge, the jury, and the executioner.
I've seen reports where the person has said, "He did this. It's gross misconduct. And ultimately, I can see no option other than dismissal". And then he's passing that to the outcome manager, but basically, he's done the outcome manager's job already by overstepping the mark.
So it's really important, I suppose, in terms of the terms of reference that you clearly say what the allegation is first. Oftentimes, I find that the allegation isn't clear either, and what turned out to be an allegation into a bullying or an incident that happened at the Christmas party . . . which is obviously very topical at the moment. And then all of a sudden, three more things come up during the investigation, and the investigator has reached conclusions in relation to those as well, but they were not the allegation that was within the terms of reference to that investigation.
So I think it's important to be clear in relation to what is the allegation and what is the role of the investigator. I think that's important.
That's fine if you're a trained investigator and you're used to doing this on an on-going basis, but a lot of the time in organisations, you pick somebody to do an investigation once in a blue moon because you won't have that many investigations. And the person doesn't have the skills and they start even talking to the person about, "Why did you do that?" and, "You know you shouldn't have done it", etc., which is not what the purpose of an investigation is.
And all of a sudden, the rules of natural justice and the fairness element . . . because if the investigation and the investigation report, which is the output of that investigation, isn't done correctly and comprehensively, all the other steps that those foundations are depending on, i.e. that investigation report, are going to be flawed.
So it's very hard to remedy other than saying, "Look, the process needs to start again". And that's a torturous process for all parties involved, and a very costly one as well for the company in terms of time, distraction, etc. So, making sure, I suppose, that it's done correctly from the outset does make a huge difference.
Dealing with Overlapping Investigations
Scott: Yeah. It comes down to the terms. I mean, it's one of the things that we were chatting up earlier, is the importance of the terms of reference. You were chatting earlier about the fact that you . . . it's almost like the investigation grows arms and legs.
There are a few questions here that have come up on the little question box here about the fact that:
If somebody raises a grievance during the process, is it okay to go off and investigate that grievance at the same time as you're dealing with the alleged disciplinary issue in the first place? And should you use the same investigator from the start to do that kind of investigation, assuming that it's related to the thing?
Maybe it's a he said/she said situation, but it may be a different complaint altogether. But somebody raises a grievance maybe about the way that the investigation is handled.
So what would you do with those kinds of things without losing the whole scope of the terms of reference?
Caroline: I think reasonability has to come into play often when it is an issue to do with bullying or it's an issue to do with performance management. Oftentimes, you will find that when the formal process commences and the company are initiating the disciplinary, the employee may raise a grievance to say, "Well, I feel the manager is bullying me, etc."
And for me, I always say, "Okay. Look, I hear what you're saying. When did you raise it? Did you raise it before this process started? Did you tell anybody?" etc. Some of that information is relevant to me when I'm doing that investigation.
However, if they want to invoke a formal grievance, then I will say, "Okay. That matter now needs to be investigated. If you want to pursue that separately, that's going to be investigated in line with the company's policy around that process".
If it happens before I've been appointed as the investigator, oftentimes, for practical purposes, cost, time, effort, etc., they will be done by the same investigator.
My benchmark always is reasonableness. And a lot of companies won't have the luxury of having that much resources to basically start that process by somebody new again, and from a timeliness perspective, etc.
So I think it's a judgement call based on the seriousness of the allegation, based on the practicalities, but the key thing I would say is if the one person is doing it, there needs to be very clear separation into how they've arrived at one decision and how they've arrived at another decision and keeping that separate so that it's not seen as . . . you're not putting it all into one paragraph and you're kind of summarising it all.
It's important that you're showing the thought process that led you to the decision so that the person reading it can say, "Well, I'm not happy with the decision, but at least I can see why she has come to that conclusion based on the evidence".
I always keep referring back to, "Based on the evidence presented during the investigation, I have reached this conclusion". Sometimes we might use words like "I feel" or "I think", whereas to me, it's all about "the evidence suggests" or "based on the evidence, I've reached this conclusion".
The Investigation Report – Who is Entitled to See this?
Scott: Yeah, and then maybe setting that out. You mentioned the person seeing the report and understanding it. There's a question come up here on the chatbox.
Who gets the report? It's commissioned presumably by the employer probably through the HR department or some director. Who gets your report at the end of the day?
Caroline: So I would agree that in the terms of reference. I would agree, "Am I going to submit the report to the company and to the complainant at the same time, or am I going to submit it to the company and they're going to do that next stage of the process?" So, again, I would say the company and the terms of reference are going to decide that.
I suppose it's always a good time when we're doing a bit of a refresh today in relation to investigations to go back and look at what is your own company policy in relation to discipline grievance, in relationship mediation, in relation to your terms of reference, because the more comprehensive that document is, the less problematic it will be for you when you commence an investigation.
Scott: There are very few I've come across which say, "Who gets the report?" That's one of the things that comes up. It might be part of the terms of reference, but you don't often find out in a disciplinary procedure that says, "There will be an investigation, and then a copy of the report will go to this witness, a copy of it will go to the person complained about, the other one will go to the person that raised the complaint, or to the manager". The anonymity that you were chatting about earlier, it's a lot harder to hold on to if you give the report everywhere.
Caroline: Yeah, absolutely. And I think the issue around that person understanding . . . and you will have seen that come up a lot in case law, where somebody might have left the organisation, they're saying that they were constructively dismissed because the company didn't take their allegations seriously, and the company are saying, "Well, you left in the middle of the investigation, so therefore, I didn't finish it".
A lot of case law has shown that that's not a good enough reason. You need to go back to the person who has raised the complaint. You don't need to give them the guts and gore, but you need to let them know how the matter has been at least resolved or addressed or how the company is taking it seriously.
And the terms of reference sometimes is silent on it. The report goes back to the HR person or to the managing director or to the appropriate person in the company and they decide. But if somebody was asking me, "Caroline, who do you think should get it?" I would always say, "The subject of the complaint and the complainant should both be made aware as to what the investigation has concluded".
Oftentimes, that puts the matter to bed for the parties in terms of they both understand the company, generally, is going to have got an independent investigator to investigate the matter and there will be thought-out process to say, "This is why we came to this conclusion".
And sometimes we'll find that the witness won't cooperate or the subject of the complaint won't cooperate. Again, the process has to continue in people's absence if they're not going to engage. The Bart Simpson principle of "I'm not going to say anything" doesn't apply when people are in the middle of this process. So reasonability has to kick in from an employer's point of view to say, "What is reasonable?"
As you rightly said, the policy will . . . and I'm a big fan of revisiting the policy annually to make sure it's fit for purpose based on the learnings you've had in the previous 12 months and based on recent case law, etc. There are definitely tweaks or changes that might be warranted to policies that mightn't have been reviewed in a while.
But you're right. A lot of information or questions are left unanswered and it falls back to the person who commissioned the investigation to make them. But I would always advise that the benchmark of reasonableness should be the benchmark in coming to that conclusion. So you're basically saying, "So what is reasonable in terms of making a decision in relation to the process? What is reasonable in terms of how you'd manage that? What decision did you make and how did you come to that decision?"
Scott: Yeah. Nothing is going to be perfect, although you would expect it to be a bit more perfect if you're doing it rather than somebody who investigates once in a while, because that's what you do for a living or one of the things you do for a living.
Terms of Reference – who can comment on these?
Scott: Just on those terms of reference, you mentioned the commissioning person, whoever that happens to be.
Is it necessary ever to give the parties an opportunity to comment on terms of reference?
Caroline: Yes, very challenging.
Scott: Can Miranda have an input into the thing? Can Scott have an input, or is it up to the employer to say, "Okay. I'm going to look into this alleged disciplinary offence"?
Caroline: I think where that becomes relevant is if the person says, "I have a fundamental issue with something significant in it". It would normally be should they have is not the detail of the terms of the reference. The issue is in relation to the person who's doing the investigation.
If somebody has an objection, rather than saying, "I have an objection to the terms of reference", I would say, "Give me the specific issue you have and the rationale for why you have it". And then I would decide, "Is that significant enough to be considered a proper rule of natural justice is going to be breached, or is it something that is not really valid and isn't going to make any difference to the process?" And I'd always, in writing, put my decision to the person.
So, if it was a case that they were saying, "I don't want the minutes to be recorded", for example, then I would say, "Okay. Look, we won't record them, but there will be a minute taker or presence in the meetings and the notes are going to be agreed before the meeting. We'll read them back. We'll get them signed during the meeting, and basically, they will be typed afterwards". And that's the compromise I might make, taking into account what they've raised.
Often, what they raised, they're raising just to raise something rather than it being something really fundamental in relation to the process, I find. The biggest issue I find is people raising an issue about the fact "I don't want that person to be the investigator". Particularly if it's an internal person, they will say, "Look, I see that person is going to be biased because they're very good friends with Scott and I'm not going to get a fair hearing because of that".
But when it's an external person . . . and we had a very good, I suppose, assessment of that in the higher court in relation to when it's reasonable to say there's a perceived bias. Again, most investigators who are doing this job on an on-going basis will come across the same, for example, union reps or the same kind of people maybe in the whole dealings that they have.
But again, what does bias look like? Again, I'd always listen to what the person has in terms of those objections, and if they're reasonable, then I would take them into account. But I wouldn't allow somebody to say, "Well, I'm not engaging in the process full stop", and delay it for copious amounts of time because, again, the employee has to be reasonable, as does the employer. It can't just be all reasonable for the employer and not reasonable for the employee.
Note Taking or Recording Meetings – What is Best?
Scott: Okay. Taking up on just one of the points that you mentioned there about recording, there are a few questions that have come in, but what's your view on best practice?
Is it note-taking or recording meetings? And who holds on to that recording? Presumably, if you record it, you're going to have to get it transcribed. There are a number of organisations maybe don't have a note-taker. You're talking about somebody that doesn't investigate very often.
There are not many shorthand typers left anymore in the world and minute takers and such like, so they're not going to be absolutely accurate. So what do you find is the norm now or what's your preference? Is it recording the whole thing and getting it transcribed and playing it back, or is it taking the key points, or does it matter?
Caroline: I think it matters. I think it's not enough to take just the key points. Ideally, you have a note-taker. A note-taker is not always essential. Sometimes the investigator will take their own notes.
But for me, I have a preference of handwritten notes rather than a recording because, for me, my preference is that after the meeting is concluded, I would read the notes back to the person and basically ask them, "Is that an accurate reflection of our discussion?"
And if there are any major anomalies, they get . . . for example, if they said, "I said Sunday, not Monday", again, we'd debate just whether I'm happy to make a change to the notes or whether I feel, "Actually, no, it was Sunday that I heard and that's what I'm going to record". But I record it as an addendum that you made or whatever the case may be. So we have that discussion there.
And then the notes are signed and I'd explain that process to the person from the outset. The good thing about that is somebody can't go away and get reflection of saying, "I'm sorry I ever said that and I want to change my mind".
Obviously, recording is also very helpful and very accurate in that regard, but it's very hard to rewind the recording, get somebody to hear it back, and then make amendments, etc. But obviously, it's not that difficult. It can be done.
But to me, the handwritten would be my preference because I do believe the notes need to be more than bullet points. To me, the problem with bullet points is the person can come along and say, "Listen, you only recorded the bits to suit me being guilty rather than to show all the evidence that shows that I'm not guilty". And you don't want that.
Again, back to the original focus, we want to present all the evidence and then show why we were swayed one way or another based on all the evidence that was presented, not just cherry-picking some of the evidence.
Scott: Yeah. Particularly during an adjudication process and even at the Labour Court, you get a full hearing and you could bring whatever evidence you want and that will be part of the process.
There are a number of questions. Maybe just some quick answers to some of these. Let's have a look here. Is the note-taker required to notate every word or just the gist of part of the conversation? Is that a . . .
Caroline: I think we've answered that.
Scott: It's more than just headlines, but it's not every single word, is the key.
Scott: Should the outcome be in a letter or should they receive the full report?
Caroline: Personally, I would always give . . . again, the company will ultimately make that judgement, but I would say it's better for them to get the full report because otherwise, they don't get to see the thought-out process as to why the investigator reached the conclusion they did.
I always think that really helps the company in moving to the next stage and helps the person understand the rationalisation as well and prevents them having a further problem later on. So I always think it's better to give them the full report.
Scott: Okay. They'll get it anyway eventually down the line, I'm sure, if they end up taking a claim.
Do Minutes of Investigative Meetings have to be Signed?
There's another question.
"Our investigations often relate to technical issues linked to accidents or safety breaches. It's not always discipline or grievance, but it could go that way. Unfortunately, we cannot complete reports by the end of the meeting for the parties to sign before they leave. What's the next best option?"
Caroline: Interesting. I wonder why that is. Is that because there's CCTV that needs to be watched, etc.? I would always . . .
Scott: I think it could be technical stuff that may be just difficult. You've got to look into, I don't know, a computer reports or you've got to look into systems or something, so by the time . . .
Caroline: Yeah. I suppose, for me, that's part of the evidence the person should have in advance of the meeting anyway so they have a chance to comment on it, the same as CCTV or whatever else.
So I don't have the full detail. Happy for them to get in touch with you and get in touch with me afterwards and talk to them about it. But I would prefer to give them as much of the factual evidence as possible in advance of the meeting, whether that's records, reports, CCTV, technical reports, etc. I think it fast tracks your process, because ultimately, you're likely going to have to meet them again otherwise.
Scott: Yeah. You're meeting at some stage during the disciplinary process and disciplinary hearing after the investigation.
Appealing an Investigation Outcome – is that Possible?
There's another question here.
"Would there ever be a right of appeal after the investigation, or is it only following the disciplinary hearing?"
Presumably the disciplinary hearing.
Scott: In that particular case here, the complaint would be the investigation is flawed.
Questions regarding technical refers to the poor note-taker not being able to keep up with technical aspects of the conversation for the note taking. So I suppose you need to approve the note-taker. If you're going to have one, you need somebody with that technical background.
Caroline: Yeah, you do. And I think, to be honest, that's the investigator's job to make sure that the person they have is competent. And as an investigator myself, I'll always take notes as well. You don't want to be responsible for taking them all, but I will take key points myself as well for my own perspective to help with my asking the next question and connecting of the dots, etc.
But you need a note-taker who is capable to . . . and I think it'll become apparent very early, for example, if something like that was a problem and you could maybe stop and say, "Look, I think it'd be helpful maybe to read back the notes so far just so we're all clear".
And if you know there's a problem that early, pause the meeting and remedy it rather than waiting to get to the end, because that first time you investigate and you meet the subject of the complaint, or the complainant, the goal is that you get the best, richest, most useful information. So not doing it right means it's very hard to ensure that the second time around is going to be better. Generally, the person is more prepared. You don't get the same power that you would in terms of asking powerful questions and getting the most insightful information, which is what our job is in that investigation process.
Scott: Okay. Thank you very much, Caroline. There are a few other questions coming in there, such as,
"Do notes have to be signed?"
Presumably, if somebody refuses to sign them, you can make a note that they refused to sign. It's a bit like giving out terms and conditions of employment there. You can't stick a pen in somebody's hand and force them to sign it, but it's preferable if they are signed before the person leaves.
Caroline: Absolutely. And I'd always make a note, as you said, to say, "Look, I asked the party to sign them. I read them back. There were no changes they made as I read them back, but they refused to sign it". And that's perfectly fine.
Scott: On the 26th of February, we have three places remaining on our workshop. We limit them to 20, those workshops that we run, anyway. So there are three places left for the 26th of February if you want to look at getting more information in a workshop on investigations.
We were chatting to Caroline earlier about our next webinar and we're thinking it should be on managing intoxicants in the workplace. Many, many problems after Christmas parties when we had our last webinar in December. So that's what we're going to be doing.
Caroline: Thanks, Scott. Well done.
Recent Webinar Recordings
- Jennifer Cashman's Annual Review of Employment Law
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