Conducting a Workplace Investigation: Top 10 Mistakes to Avoid

10 Common Workplace Investigation Mistakes and How to Avoid Them

Workplace investigations are more complex than most people realise. When allegations of misconduct, harassment, or policy breaches surface in your organisation, how you handle the investigation can make or break your defence in an employment tribunal. Every decision you make during this process carries weight, from the moment you receive a complaint to the final report that shapes future actions.

The stakes couldn't be higher. A well-executed workplace investigation protects your business from costly tribunal claims, preserves employee trust, and demonstrates your commitment to fair treatment. However, a flawed investigation can escalate disputes, damage your reputation, and leave you vulnerable to significant legal challenges.

Employment tribunal statistics show that poorly conducted investigations are a common factor in successful claims against employers. This is where understanding best practices becomes crucial. The ACAS Code of Practice provides clear guidance, yet many organisations still fall into predictable traps that could easily be avoided.

This comprehensive guide examines the most frequent mistakes made during workplace investigations and provides actionable strategies to avoid them. Drawing insights from real tribunal cases and expert analysis, including resources from Litigated's extensive database of employment law precedents, you'll discover how to conduct investigations that stand up to legal scrutiny while maintaining fairness for all parties involved.

1. Failing to Act Promptly

Time is your enemy when conducting a workplace investigation. Every day you delay after receiving a complaint weakens your position and potentially compromises the entire process. Witnesses forget crucial details, evidence disappears, and the situation often deteriorates while you hesitate to take action.

The consequences of delayed investigations extend far beyond inconvenience. In harassment and discrimination cases, prompt action isn't just best practice—it's often legally required. Employment tribunals scrutinise the timeline from complaint to investigation, and unreasonable delays can result in increased compensation awards or findings of procedural unfairness. When you fail to act swiftly, you send a message that complaints aren't taken seriously, which can damage workplace culture and expose you to additional claims.

What constitutes prompt action in workplace investigations? The ACAS Code of Practice emphasises acting without unreasonable delay, though it doesn't specify exact timeframes. Generally, you should:

• Acknowledge complaints within 24-48 hours
• Begin the investigation within one week of receiving the allegation

This timeline allows you to gather preliminary information while memories remain fresh and prevents the situation from escalating.

"The ACAS Code emphasises that employers should carry out any necessary investigations to establish the facts of the case without unreasonable delay. Delays can prejudice a fair hearing and may lead to increased compensation." - ACAS Advisory Handbook

Prompt action requires preparation. Develop investigation protocols before issues arise, including templates for acknowledgment letters, a pool of trained investigators, and clear escalation procedures. When a complaint arrives, you'll be ready to respond immediately rather than scrambling to create processes on the spot.

However, speed shouldn't compromise thoroughness. The key is balancing urgency with due diligence. Start your investigation quickly by securing evidence, identifying witnesses, and planning your approach, but don't rush the actual fact-finding process. Quality investigations take time, but they should begin without delay.

"Time is of the essence in workplace investigations. The longer you leave it, the more likely witnesses are to forget important details and the harder it becomes to establish what actually happened." - Sarah Bradford, Employment Law Specialist

Communicate your timeline clearly to all parties involved. When complainants understand that you're taking their concerns seriously and have a structured plan, they're more likely to remain patient with the process. Similarly, respondents benefit from knowing what to expect and when, reducing anxiety and allowing them to prepare appropriately.

2. Lacking a Clear Plan and Defined Scope

Starting an investigation without proper planning is like embarking on a journey without a map. You might eventually reach a destination, but you'll waste time, resources, and credibility along the way. A well-defined scope and clear terms of reference are essential for conducting focused, effective workplace investigations that deliver reliable results.

The scope defines what your investigation will and won't cover. This distinction is crucial because workplace investigations can quickly expand beyond their original parameters, a phenomenon known as "scope creep." When new allegations surface during interviews or additional witnesses come forward with unrelated concerns, it's tempting to investigate everything simultaneously. However, this approach often leads to confusion, delays, and weakened findings.

Effective investigation planning starts with the "Five Ws":

• Why is the investigation necessary?
• Who is involved as complainants, respondents, and witnesses?
• When did the alleged incidents occur?
• What specific behaviours or policies are being examined?
• Where did events take place?

Answering these questions provides the foundation for your investigation strategy.

Your terms of reference should clearly state which allegations will be investigated and which won't. If related issues arise during the process, consider whether they warrant separate investigations or whether the scope should be formally amended. Document any scope changes and communicate them to relevant parties to maintain transparency.

Create a provisional timeline that includes key milestones such as evidence collection, witness interviews, analysis, and report completion. Build flexibility into this schedule because investigations rarely proceed exactly as planned. New evidence might emerge, witnesses might be unavailable, or external factors could cause delays.

Consider the resources required for your investigation. Who will serve as the investigator? What administrative support is needed? Which external experts might be required? Planning these elements in advance prevents delays and ensures you have the necessary tools to conduct a thorough investigation.

Document your investigation plan and share it with relevant stakeholders. This transparency helps manage expectations and provides a reference point if questions arise about your methodology or decisions.

3. Appointing a Biased or Unsuitable Investigator

The investigator you choose can make or break your workplace investigation. This individual must possess the right combination of skills, experience, and objectivity to conduct a fair and thorough examination of the facts. Getting this appointment wrong can invalidate your entire process and leave you vulnerable to successful tribunal claims.

Impartiality is the cornerstone of effective investigations. The investigator must have no personal interest in the outcome, no prior involvement with the parties, and no conflict of interest that could influence their judgment. This requirement seems straightforward, but it's often overlooked in practice. For example, appointing a manager who works closely with the respondent, or selecting someone who previously expressed opinions about the case, can fatally compromise the investigation's credibility.

When deciding between internal and external investigators, consider the complexity and sensitivity of the case. Internal investigators understand your organisation's culture, policies, and procedures, which can be advantageous. However, they may also face pressure to reach certain conclusions or may struggle to maintain objectivity when investigating colleagues. External investigators bring independence and specialised expertise but may lack organisational context and prove more expensive.

Training is essential for anyone conducting workplace investigations. Even experienced managers need specific skills in evidence gathering, interviewing techniques, and legal compliance. Investigators must understand concepts like the balance of probabilities, natural justice, and procedural fairness. They should also be familiar with employment law principles and your organisation's policies.

The investigator's role must be clearly separated from any subsequent disciplinary decision-making. The same person shouldn't investigate misconduct and then decide on disciplinary sanctions. This separation maintains objectivity and ensures that the investigation is focused on fact-finding rather than punishment.

"The investigator should not be the person who makes the decision whether or not to dismiss. The employer should appoint someone different to take the disciplinary decision." - ACAS Code of Practice

Consider the perceived bias as well as actual bias. Even if your chosen investigator is genuinely impartial, their appointment could appear problematic to the parties involved. Address any concerns about investigator selection early in the process and explain your reasoning for the appointment.

Litigated's analysis of employment tribunal cases reveals that investigator bias is a common factor in successful unfair dismissal claims. Tribunals carefully examine the investigator's background, training, and relationship to the parties when assessing the fairness of dismissal decisions.

4. Failing to Gather Sufficient and Relevant Evidence

Evidence forms the foundation of every workplace investigation. Without comprehensive, relevant evidence, your findings will lack credibility and may not withstand scrutiny in employment tribunals. Yet many investigations fail because they don't cast the net wide enough when gathering evidence or don't properly preserve and analyse what they collect.

Modern workplace investigations must consider various types of evidence:

• Documents: emails, text messages, policies, procedures, attendance records
• Digital evidence: computer logs, CCTV footage, access records, social media posts
• Physical evidence: photographs, damaged property, workplace layouts

Develop a systematic approach to evidence collection. Create an evidence plan that identifies what information you need, where it might be located, and how you'll obtain it legally. This planning prevents important evidence from being overlooked and ensures you comply with data protection requirements under GDPR and other privacy laws.

Timing is critical when collecting evidence. Digital records might be automatically deleted after certain periods, witness memories fade, and physical evidence can be altered or destroyed. Act quickly to preserve relevant evidence, but ensure you follow proper procedures. Seize computers or documents only if you have the legal authority to do so, and always document the chain of custody for any evidence you collect.

Consider the credibility and reliability of different evidence types. Contemporary documents written at the time of events are generally more reliable than recollections provided weeks or months later. However, all evidence must be evaluated carefully. Emails might be taken out of context, witnesses might have their own biases, and documents might not tell the complete story.

"Contemporary documents created at the time of events are worth their weight in gold in employment disputes. They provide an objective record that can't be challenged by fading memories." - Michael Reed, Employment Tribunal Judge

GDPR compliance is essential when collecting evidence for workplace investigations. You must have a lawful basis for processing personal data, inform individuals about data use where appropriate, and implement appropriate security measures. Balance transparency with the need to protect the investigation's integrity—you don't want to alert potential witnesses to what evidence you're seeking.

Document everything meticulously. Record what evidence you collected, when you obtained it, who provided it, and how it relates to the allegations under investigation. This documentation demonstrates thoroughness and helps you track your progress through complex cases.

Employment tribunals expect to see comprehensive evidence gathering in workplace investigations. Litigated's tribunal analysis shows that cases often succeed or fail based on the quality and completeness of the evidence presented. Insufficient evidence gathering is a common criticism in unfair dismissal claims.

5. Conducting Poorly Executed Interviews

Interviews are often the most critical component of workplace investigations, yet they're frequently conducted poorly. The quality of your interviews can determine whether you uncover the truth or leave with incomplete, biased, or unreliable information. Mastering interview techniques is essential for any successful workplace investigation.

Preparation is the foundation of effective interviews. Before meeting with any witness, complainant, or respondent, thoroughly review all available evidence and prepare specific questions based on the facts you need to establish. Notify interviewees in advance about the meeting, explaining its purpose and their rights. In formal investigations, particularly those that might lead to disciplinary action, employees may have the right to be accompanied by a colleague or trade union representative.

Effective questioning techniques include:

• Use open-ended questions beginning with "what," "when," "where," "why," and "how"
• Avoid leading questions that suggest answers
• Replace closed yes/no questions with exploratory alternatives

Instead of asking "Did you see John being aggressive?" try "What did you observe about John's behaviour during the meeting?"

Active listening is crucial during workplace investigation interviews. Give interviewees your full attention, maintain appropriate eye contact, and avoid interrupting their responses. When people feel heard and respected, they're more likely to provide complete and honest accounts. Use silence effectively—sometimes pausing after an answer encourages additional details that might otherwise be withheld.

Take detailed notes during interviews, or consider recording them with explicit consent from all parties. If recording, ensure you comply with data protection requirements and explain how the recordings will be used and stored. Detailed notes help you remember important information and provide a record that can be reviewed later for consistency.

After each interview, prepare a summary of the key points and ask the interviewee to review it for accuracy. This process helps prevent disputes about what was said and demonstrates your commitment to fairness. Some investigators provide a written summary for the interviewee to sign, while others simply read back the key points and note any corrections.

Handle emotional reactions with empathy and professionalism. Workplace investigations often involve sensitive topics that can cause distress, anger, or fear. Acknowledge these emotions while maintaining focus on the facts you need to establish. Take breaks if necessary and consider whether additional support might be needed.

Be aware of your own biases and preconceptions. It's natural to form opinions based on early evidence, but don't let these influence your questioning style or interpretation of responses. Approach each interview with an open mind and genuine curiosity about what happened.

6. Mishandling Confidentiality

Confidentiality breaches can derail workplace investigations faster than almost any other mistake. When sensitive information leaks, it damages trust, compromises the investigation's integrity, and can lead to additional legal challenges. Yet maintaining confidentiality during investigations requires careful balancing—you need to gather information while protecting privacy and preventing harmful gossip.

Confidentiality in workplace investigations serves multiple purposes:

1. Protects the privacy and dignity of all parties involved
2. Prevents interference with the investigation process
3. Maintains workplace stability
4. Complies with data protection laws

However, absolute confidentiality is neither possible nor desirable. You must share information with those who need to know to conduct a fair and thorough investigation.

Establish clear confidentiality guidelines at the start of your investigation. Explain to all parties—complainants, respondents, witnesses, and investigators—what information will be kept confidential and what might need to be shared. Be specific about who has access to investigation materials and under what circumstances information might be disclosed.

The "need to know" principle should guide your confidentiality decisions. Share information only with individuals who require it to perform their role in the investigation or to make subsequent decisions. This typically includes the investigator, relevant HR personnel, senior managers who might make disciplinary decisions, and legal advisors. Avoid sharing details with colleagues who aren't directly involved, even if they're curious or express concern.

GDPR and other data protection laws impose specific requirements on handling personal information during workplace investigations. You must have a lawful basis for processing personal data, implement appropriate security measures, and respect individuals' rights regarding their personal information. This includes secure storage of investigation files, limited access to sensitive documents, and proper disposal of materials when the investigation concludes.

Address confidentiality challenges proactively. In small organisations, maintaining confidentiality can be particularly difficult because everyone knows each other and news travels quickly. Consider whether temporary arrangements, such as working from home or adjusted duties, might help maintain confidentiality while the investigation proceeds.

Monitor compliance with confidentiality requirements throughout the investigation. If you discover breaches, address them immediately and consider whether they've compromised the investigation's integrity. In some cases, confidentiality breaches might require additional interviews or even external investigation to restore credibility.

Communicate the importance of confidentiality to the wider organisation without revealing specific details about ongoing investigations. Regular training on confidentiality expectations helps create a culture where employees understand their responsibilities and the potential consequences of breaching confidentiality.

Litigated's tribunal case analysis reveals that confidentiality breaches are often cited in successful claims against employers. Tribunals pay close attention to how organisations handle sensitive information during investigations and may view breaches as evidence of procedural unfairness.

7. Failing to Document Properly

Documentation is the backbone of any defensible workplace investigation. Without proper records, even the most thorough investigation can crumble under legal scrutiny. Employment tribunals expect to see comprehensive documentation that demonstrates fair process, thorough fact-finding, and reasonable decision-making. Poor documentation is one of the fastest ways to lose credibility in legal proceedings.

Comprehensive documentation starts from the moment you receive a complaint. Record when the allegation was made, who made it, what specific concerns were raised, and how you responded. This initial documentation establishes the timeline and demonstrates your commitment to addressing workplace issues promptly.

Your investigation file should include sections for:

• The complaint and initial response
• Evidence collected and chain of custody
• Interview notes and summaries
• Correspondence with all parties
• Analysis and decision-making rationale
• Final report and recommendations

Use consistent formatting and clear labelling so anyone reviewing the file can easily understand the investigation's progression and findings.

Interview documentation requires particular attention. Take detailed notes during each interview, recording not just what was said but also body language, emotional reactions, and any other observations that might be relevant. If you record interviews, ensure you have proper consent and that recordings are stored securely. Always provide interviewees with the opportunity to review and correct their statements.

Document your decision-making process throughout the investigation. When you decide not to pursue certain lines of inquiry, explain why. If you determine that some evidence is unreliable or irrelevant, record your reasoning. This documentation helps demonstrate that your investigation was thoughtful and thorough, not arbitrary or biased.

Correspondence with all parties should be documented carefully. Keep copies of letters, emails, and notes from telephone conversations. When you make verbal communications, follow up with written summaries to ensure understanding and create a permanent record.

Version control becomes important in complex investigations where multiple drafts of documents might exist. Use clear naming conventions and dates to track different versions of interview summaries, evidence analyses, and reports. This prevents confusion and ensures everyone is working from the same information.

Security and retention of investigation documents must comply with data protection requirements. Implement appropriate access controls, use secure storage systems, and establish clear retention periods. Consider who might need access to the documentation in future and plan accordingly.

Digital documentation tools can streamline the process and improve organisation. However, ensure any systems you use comply with data protection requirements and that you have appropriate backup procedures. The goal is to create a comprehensive, organised record that supports your findings and demonstrates procedural fairness.

Employment tribunals regularly review investigation documentation when considering unfair dismissal and discrimination claims. Litigated's analysis of tribunal decisions shows that well-documented investigations are more likely to withstand legal challenge, while poor documentation often leads to findings of procedural unfairness.

8. Producing a Poorly Written Investigation Report

Your investigation report is the culmination of weeks or months of careful work, yet many investigations fail at this final hurdle due to poorly written, unclear, or biased reports. The report is often the primary document reviewed by decision-makers, employment tribunals, and other stakeholders, making its quality crucial to the investigation's credibility and effectiveness.

A well-structured investigation report follows a logical progression that allows readers to understand the background, methodology, evidence, analysis, and conclusions. Start with an executive summary that provides a high-level overview of the key findings and recommendations. This summary might be the only section some readers review, so ensure it accurately represents the full investigation.

The introduction should clearly state the purpose of the investigation, the allegations being examined, and the scope of the inquiry. Provide sufficient background information to help readers understand the context without overwhelming them with unnecessary details. Explain your methodology, including how you gathered evidence, who you interviewed, and what standards you applied when evaluating information.

Present your evidence systematically, organising it by theme or chronologically as appropriate. Don't simply list everything you collected—analyse and interpret the evidence, explaining how different pieces fit together to support or contradict the allegations. Use headings and subheadings to break up large sections of text and make the report easier to navigate.

Apply the balance of probabilities standard when reaching conclusions about disputed facts. This means determining what most likely happened based on the available evidence, not proving facts beyond reasonable doubt. Be explicit about this standard and explain how you applied it to reach your findings.

Avoid making recommendations about disciplinary sanctions in your investigation report. Your role as investigator is to establish facts, not to determine punishments. Leave disciplinary decisions to appropriate managers who can consider the investigation findings alongside other relevant factors such as the employee's record, mitigating circumstances, and organisational policies.

Write clearly and objectively, avoiding emotive language or personal opinions. Use straightforward language that can be understood by all readers, including those without legal or HR expertise. Be specific about what you found rather than using vague terms like "inappropriate behaviour" or "poor conduct."

Quality assurance is essential before finalising your report. Have someone else review it for clarity, accuracy, and completeness. Check that your conclusions are supported by the evidence presented and that you haven't inadvertently introduced bias or made unfounded assumptions.

Consider the report's potential audience when writing. While the immediate audience might be internal decision-makers, the report could later be scrutinised by employment tribunals, lawyers, or other external parties. Write with this broader audience in mind, ensuring the report can stand up to critical analysis.

Litigated's tribunal case analysis demonstrates that high-quality investigation reports significantly improve employers' chances of successfully defending unfair dismissal and discrimination claims. Tribunals value clear, objective reporting that demonstrates thorough fact-finding and fair process.

9. Neglecting Employee Wellbeing Throughout the Process

Workplace investigations are inherently stressful experiences that can have profound impacts on everyone involved. Failing to consider and support employee wellbeing during investigations isn't just callous—it can undermine the process, damage workplace culture, and expose your organisation to additional legal risks. A compassionate approach that prioritises wellbeing alongside fact-finding produces better outcomes for all parties.

The emotional impact of workplace investigations is often underestimated. Complainants may feel vulnerable, anxious about retaliation, and concerned that their concerns won't be taken seriously. Respondents typically experience stress, uncertainty, and worry about their job security and reputation. Witnesses might feel uncomfortable about getting involved or worry about the consequences of their testimony. Even uninvolved employees can become anxious when they know an investigation is taking place.

Recognising these impacts is the first step toward addressing them effectively. Acknowledge that investigations are stressful and communicate your commitment to treating everyone with dignity and respect throughout the process. This acknowledgment doesn't undermine the investigation's seriousness—it demonstrates professionalism and care.

Implement practical support measures:

• Provide clear points of contact for questions
• Offer access to employee assistance programmes
• Consider counselling services or mental health resources
• Ensure regular communication about progress

These services should be available to all parties involved, not just complainants.

Communication plays a crucial role in supporting wellbeing during investigations. Keep parties informed about progress and timelines without compromising confidentiality. Uncertainty often increases stress, so regular updates—even if they simply confirm that the investigation is proceeding—can provide reassurance. Be clear about what people can expect and what's expected of them.

Pay particular attention to employees who might be especially vulnerable during investigations. This includes individuals with pre-existing mental health conditions, those who might be experiencing other personal stressors, or people who have limited support networks at work. Consider whether reasonable adjustments might be needed to help these employees participate fully in the investigation process.

Confidentiality measures also support wellbeing by protecting people's reputations and privacy. When information about investigations spreads through workplace gossip, it can cause additional distress and damage relationships. Strong confidentiality protocols help minimise these secondary impacts.

Monitor the workplace atmosphere during investigations and be prepared to intervene if tensions arise. Sometimes temporary arrangements, such as adjusted working patterns or physical separation, might be necessary to maintain a professional environment while the investigation proceeds.

Remember that your duty of care continues after the investigation concludes. Winners and losers might need different types of support as they adjust to the outcome and continue working together. Consider whether additional measures, such as mediation or team-building activities, might help restore workplace relationships.

The wellbeing-focused approach to workplace investigations isn't just ethically right—it's also practically beneficial. Employees who feel supported are more likely to participate fully and honestly in the investigation process. They're also more likely to maintain trust in the organisation and its leadership, even when outcomes aren't what they hoped for.

10. Failing to Follow Up and Learn from the Investigation

Completing an investigation report marks the end of the fact-finding phase, but it's not the end of your responsibilities. How you follow up after the investigation determines whether the process successfully resolves issues and prevents future problems. Many organisations fail to capitalise on the learning opportunities that investigations provide, leading to recurring issues and missed opportunities for improvement.

Effective follow-up starts with ensuring that appropriate action is taken based on the investigation findings. This might include disciplinary measures, policy changes, additional training, or other corrective actions. The key is to demonstrate that the investigation had a purpose beyond simply gathering facts—it was designed to address problems and improve the workplace.

Communication about outcomes requires careful consideration of confidentiality and legal requirements. While you can't share detailed findings with everyone, you can communicate that the matter has been addressed appropriately. For example, you might inform the complainant that action has been taken without specifying exactly what action was implemented. This communication helps close the loop and demonstrates that complaints are taken seriously.

Consider whether any systemic issues contributed to the problems that triggered the investigation. Individual misconduct often occurs against a backdrop of organisational failures such as inadequate training, unclear policies, poor supervision, or cultural problems. Addressing these underlying issues is essential for preventing similar problems in future.

"Employers should look beyond the immediate circumstances of individual cases to see if there are underlying issues that need to be addressed, such as training needs or policy gaps." - Nick from Litigated

Conduct a lessons-learned review after each significant investigation. What went well during the process? What could have been done better? Were there procedural gaps or resource constraints that hindered the investigation? This review should involve key stakeholders including HR, senior management, and the investigation team.

Use investigation outcomes to inform policy and procedure updates. If the investigation revealed gaps in existing policies or procedures, address these promptly. Update training programmes to incorporate lessons learned and ensure all managers understand their responsibilities in preventing and addressing workplace problems.

Monitor the workplace environment after the investigation to ensure that issues have been genuinely resolved. This might involve follow-up conversations with key individuals, employee surveys, or other methods of gathering feedback. Be alert to signs of retaliation or ongoing tensions that might require additional intervention.

Consider whether the investigation process itself worked effectively. Were timelines appropriate? Was the investigator suitable for the case? Did communication with parties work well? Were resources adequate? This process review helps you refine your approach for future investigations.

Document the lessons learned and actions taken so that future investigations can benefit from your experience. Create a knowledge base that captures insights about common issues, effective techniques, and procedural improvements. This documentation is particularly valuable for organisations that conduct investigations infrequently.

Litigated's analysis of employment tribunal cases provides valuable insights that can inform your post-investigation learning. Understanding how tribunals view different aspects of the investigation process helps you identify areas for improvement and reduces the risk of future legal challenges.

The follow-up phase is also an opportunity to strengthen your organisation's culture and values. When employees see that issues are addressed fairly and thoroughly, and that the organisation learns from its mistakes, it builds trust and encourages people to raise concerns when they arise.

Remember that investigation outcomes might require ongoing monitoring and support. Workplace relationships don't automatically heal after an investigation concludes, and some situations might require additional interventions such as mediation, team development, or continued supervision.

Conclusion

Conducting effective workplace investigations requires careful attention to process, fairness, and legal compliance. These ten common mistakes represent the most frequent pitfalls that can undermine even well-intentioned investigations. By understanding and avoiding these errors, you protect your organisation from legal challenges while demonstrating genuine commitment to creating a fair and respectful workplace.

The investigation process itself sends powerful messages about your organisation's values and priorities. When handled professionally, investigations can strengthen workplace culture and build employee trust. When conducted poorly, they can cause lasting damage to relationships and expose your business to significant legal and financial risks.

Litigated's comprehensive analysis of employment tribunal cases provides invaluable insights into what works and what doesn't in workplace investigations. Learning from real tribunal decisions helps you understand how legal standards are applied in practice and identify areas where your procedures might need strengthening.

FAQs

What is the ACAS Code of Practice and how does it relate to workplace investigations?

The ACAS Code of Practice on Disciplinary and Grievance Procedures provides essential guidance for conducting fair and transparent workplace investigations. While the Code doesn't have the force of law, employment tribunals must consider it when determining whether disciplinary and grievance procedures have been followed fairly. Failure to follow the Code can result in increases or decreases of up to 25% in any compensation awarded by a tribunal.

The Code emphasises several key principles that apply to workplace investigations: acting without unreasonable delay, conducting investigations to establish facts, informing employees of problems and giving them opportunities to respond, allowing employees to be accompanied at formal meetings, and providing rights of appeal. Following these principles helps ensure that your investigation process meets legal standards and reduces the risk of successful tribunal claims.

When should an employer consider using an external investigator?

External investigators should be considered in several situations where internal resources may be insufficient or where independence is particularly important. Complex cases involving senior management, sensitive allegations such as discrimination or harassment, situations where internal investigators might face conflicts of interest, or cases where specialised expertise is required all benefit from external investigation.

The advantages of external investigators include independence from organisational politics, specialised training and experience, credibility with all parties involved, and fresh perspective on organisational issues. However, external investigators also have disadvantages including cost, lack of organisational knowledge, and potential delays in understanding company culture and procedures. The decision should be based on the specific circumstances of each case and the resources available internally.

Can an employee refuse to participate in a workplace investigation?

Employees have both obligations and rights regarding participation in workplace investigations. While there's no absolute legal requirement to participate, employees have an implied contractual duty to cooperate with reasonable management requests, including investigations. Refusal to participate without good reason could potentially lead to disciplinary action for failure to follow reasonable instructions.

However, employees also have rights that must be respected during investigations. These include the right to be accompanied in certain circumstances, the right to privacy regarding personal information, and protection from retaliation for making complaints or participating as witnesses. Employees may also have legitimate concerns about participating, such as fear of retaliation or concerns about confidentiality, which should be addressed sensitively.

If an employee refuses to participate, explore the reasons for their refusal and consider whether additional support or reassurance might address their concerns. Document any refusal and your attempts to encourage participation, as this may be relevant to subsequent decisions about the case.

How long should a workplace investigation take?

Investigation timelines depend on numerous factors including the complexity of allegations, number of witnesses, availability of evidence, and resources available for the investigation. Simple cases with clear facts and few witnesses might be completed within two to four weeks, while complex cases involving multiple allegations, numerous witnesses, or technical evidence might take several months.

The ACAS Code emphasises acting without unreasonable delay, but doesn't specify exact timeframes. Generally, you should aim to complete investigations within reasonable timescales while ensuring thoroughness. More important than specific deadlines is maintaining progress and communicating regularly with all parties about expected timelines.

Factors that might extend investigation timelines include witness unavailability, technical evidence requiring expert analysis, discovery of additional allegations during the process, need for external expertise, and complexity of legal or policy issues involved. Build flexibility into your timelines while maintaining momentum toward completion.

What are the potential consequences of a poorly conducted investigation?

The consequences of flawed workplace investigations can be severe and long-lasting. Legal consequences include successful unfair dismissal claims, discrimination claims, increased tribunal compensation, and potential personal liability for individual managers. Financial implications extend beyond tribunal awards to include legal costs, management time, settlement payments, and potential regulatory fines.

Reputational damage can affect your ability to attract and retain employees, damage relationships with customers and suppliers, and harm your organisation's standing in the industry. Internal consequences include loss of employee trust, reduced engagement and productivity, increased staff turnover, and damage to workplace culture.

The impact on individuals involved can be profound, including stress-related illness, damage to careers and reputations, breakdown in workplace relationships, and loss of confidence in organisational fairness. These human costs often extend beyond the immediate parties to affect the broader workforce.

Litigated's analysis of tribunal cases demonstrates that well-conducted investigations significantly improve employers' chances of successfully defending employment claims, while poorly conducted investigations often lead to adverse findings and increased compensation awards. The investment in proper investigation procedures pays dividends in reduced legal risk and improved workplace culture.

Nick

With a background in international business and a passion for technology, Nick aims to blend his diverse expertise to advocate for justice in employment and technology law.