Legal – Should you use independent investigation services?

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Claire Brook explores the pros and cons of using external experts for employment issues

When employment issues crop up in the workplace, it is essential to conduct fair investigations as one wrong turn, even if made innocently, can have significant consequences in terms of expense, time and exposure to potential claims.

Employers are increasingly appointing external, independent investigators to help thoroughly investigate complex and sensitive employment issues. Using an external expert can reduce the stress and potential personal strain that often arises when trying to conduct such processes internally. When carried out properly, it can also provide reassurance that the process has been handled fairly and impartially.

The downside of appointing an external investigator is the additional cost to the business. It can also introduce an element of external scrutiny into the business and, if overused, can undermine management authority to handle internal matters.

When it is appropriate to use an investigator?

If possible, minor and straightforward issues should be resolved internally as this promotes good practice and confidence in the workplace. However, for more serious, technical or sensitive issues, external investigators may be used effectively.

If there is a conflict of interest, or a manager who would usually deal with the investigation is either a witness to or implicated in the matters to be investigated – or if there is no one else suitably qualified and experienced at the organisation who is available to deal with the issue fairly – an external investigator is often appointed.

Ultimately, the decision to appoint an external investigator should be based on the need for fairness, balanced against the employer’s requirements for a cost-effective and efficient investigation.

What is their role?

External investigators will seek to remain fair and objective, obtaining all relevant evidence they consider to be necessary to conduct a reasonable investigation (whether this supports or contradicts an allegation). This will involve collating documentary evidence and taking witness statements in relation to the issues under investigation.

In the context of a disciplinary matter, it is not an investigator’s role to prove the guilt or otherwise but to investigate if there is a case to answer.

What should employers look for?

Businesses that are considering appointing an investigator should ensure that whoever they use is appropriately qualified and experienced in dealing with HR issues. It is important to ensure investigators are familiar with Acas guidelines and have a good grasp of HR procedures. It is also useful for an investigator to be familiar with the employer’s business sector and any regulatory requirements.

Companies should:

  • provide an adequate brief to the investigator on the issues;
  • give clear instructions about what is required;
  • make appropriate arrangements to protect confidentiality;
  • agree with the investigator what resources and access will be required;
  • ensure appropriate supplier terms of appointment are in place, which should also address legal compliance obligations (including the GDPR); and
  • check their own insurance policies and check the investigator has insurance in place.

Possible pitfalls

Investigators should not influence a decision – their job is purely to conduct an impartial investigation and the terms of appointment should therefore clarify the extent of the appointment (to include what the investigator should not do). It is not the role of an independent investigator to act as decision-maker and the company may ultimately be held liable for any failure that leads to a successful claim.

Claire Brook is an employment law partner at Aaron & Partners 

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