Workplace Investigations

Incidents of criminality and malpractice – such as bullying and harassment – in the workplace are often passed on to managers, who are increasingly required to conduct sensitive and often complex investigations additional to their routine.

Those managing investigations find themselves amid a legal minefield and have to be aware of various Acts, Regulations, statutory requirements and Duty of Care obligations. Any investigation must ensure that decisions and actions taken are (inter alia) proportionate, relevant, accountable and legally – not to mention procedurally – compliant.

In order to progress an effective investigation, the ‘investigator’ (in this case the security professional) is best advised to follow certain basic principles and adhere to a framework that will produce an unbiased outcome capable of surviving legal challenge, whether in a Court of Law or at a tribunal.

Planning: crucial to success

Planning an investigation is crucial to its success. At the outset, the investigator must make an initial analysis of the allegations, remembering that some complaints may be spurious. Malicious complaints are not uncommon. An action plan must be written that details the allegation and outlines any policy, procedure or law that may have been transgressed. That plan should also provide details of a timeline for the investigation, outline necessary resources (such as team members and equipment), necessary evidential sources (documents and computer data, etc), possible witnesses and the order in which they will be interviewed.

This will help in establishing the scope of the inquiry and who needs to know as well as determining what immediate action is required (for example, preserving key evidence). With the discovery of a crime, the police or statutory bodies may have to be called in or notified and consideration given to the likely impact on the workforce, customers, shareholders and even the marketplace in general.

The IIMARC briefing model

The Association of Chief Police Officers (ACPO) and the Home Office have approved briefing models for covert/overt investigations, one of which is IIMARC (short for Intelligence, Intention, Methodology, Administration, Risks and Communication). Details in each section provide the framework for conducting operational briefings and subsequent investigations of individuals.

This model is a requirement for Public Authority investigations. However, my view is that those operating in the private sector are well advised to follow the process to demonstrate a commitment to fairness and respect of the individual’s rights.

An investigation file must be compiled to include details of all major discussions, meetings, e-mails, relevant telephone calls and SMS messages, interviews, actions, decisions and conclusions made during the investigation. The file should be securely stored to prevent unauthorised access, damage or alteration, and by way of maintaining strict confidentiality.

With prima facie cases of criminality, organisations need to appoint a security manager to conduct a given investigation who is fully conversant with the Police and Criminal Evidence Act 1984, the Regulation of Investigatory Powers Act 2000, the Data Protection Act 1998, the Freedom of Information Act 2000 and the Human Rights Act 1998 (among others). Employment law considerations and the statutory disciplinary process also need to be followed diligently.

Evidence must be secured and preserved from the outset, and relevant procedures, policy documents, internal/external communications and background information about businesses or individuals collated. It’s advisable to copy all relevant files and secure them – attempts may be made to destroy valuable evidence.

If employers want to pursue criminal proceedings against a certain employee – on the basis of fraud, for example – then the evidence will be tested ‘beyond all reasonable doubt’... with hearsay evidence excluded

Original documents should be photocopied and secured, and copies used in the case file. Back-up copies should be made of all pertinent computer hard drives, while specific files or documents should be copied onto removable storage media. Remember to log details of when the copies were made, who made them and to whom they were passed on.

Information Commissioner’s rules

Relevant CCTV data has to be obtained, stored securely and handled in accordance with the Information Commissioner’s Code of Practice. Copies of recordings will only be admissible as evidence providing there is a clear audit trail to the original data.

Continuity of evidence is vital. Evidence needs to be analysed and, if possible, conflicts reconciled. Categorisation of evidence into direct, speculative, hearsay and circumstantial ‘files’ will assist with assessing witness credibility. It’s also important to understand that the burden of proof differs greatly between criminal and civil matters. If employers want to pursue criminal proceedings against an employee – on the basis of fraud, for example – the evidence will be tested ‘beyond all reasonable doubt’, with hearsay evidence excluded. However, in civil cases the level of proof is much lower, the test being ‘on the balance of probability’. Hearsay evidence is permissible.

Investigators need to be aware of the disciplinary process and Arbitration and Conciliation Service (ACAS) guidelines when dealing with the accused in an internal investigation. For example, they should be afforded the right to be accompanied during disciplinary meetings by a work colleague or Trade Union representative.

Findings and recommendations

Once the investigation is concluded, the investigator will need to compile a report outlining the allegation, together with a summary of findings and – in certain circumstances – recommendations.

Recommendations may include an agreed way forward and changes to methodology, process or policy and methods for dealing with those involved.

An ad hoc approach to investigations does little for the credibility of an individual or organisation, and may actually allow guilty parties to remain free of censure.

In my experience, a common fault of managers tasked with conducting internal investigations is that they fail to gather all the available facts from the outset, and all-too-frequently fail to plan. Such oversights invariably lead to counter claims and costly compromise settlements. If an organisation does not have the requisite skills internally they ought to seek professional external advice from the outset.

David Gill MSyI is managing director of Linx International (www.linx-int.com)