Whilst the on-going Coronavirus pandemic is expected to only be temporary, it is likely that it will have a substantial effect on the way we work in the future with an expected increase in the trend of home working.
This means it is more likely that employers will have to conduct workplace investigations, involving sensitive issues such as disciplinary and/or grievance, remotely. This creates additional hurdles for employers but, when used properly, can make the process more efficient and subsequently less costly.
What stays the same?
A large amount of what happens in workplace investigations that take place remotely remains the same as if they were happening in person. The standard core principles involved in workplace investigation procedures still apply despite the ongoing pandemic.
This means that employers should continue to pay close attention to the guidance set out in the ACAS Code of Practice on disciplinary and grievance procedures, together with the contents of their own internal disciplinary policies. Failure to comply with the ACAS code could increase any eventual financial award an employee might receive at the employment tribunal by up to 25%.
This, in turn, means that employees:
- should be given reasonable notice of any meetings;
- should be given sufficient information about the problem to respond appropriately;
- have the right to be accompanied at disciplinary or grievance hearings by a trade union representative or colleague; and
- have the right to appeal any disciplinary or grievance outcome.
More generally, employers should bear in mind that a disciplinary or grievance process must always be fair and reasonable. They should also still give consideration to whether a participant has a disability and may require reasonable adjustments to be made.
Should I investigate?
One thing that may change, however, is whether employers will investigate all concerns raised immediately, or whether they might wait until they are able to investigate in person.
Given already stretched resources, some employers may have to consider whether the issue that has been raised is serious enough to warrant an investigation or whether they could potentially wait until social distancing measures are relaxed to an extent that would allow matters to proceed in person.
Ideally, where it is practicable to do so, remote investigations should take place without any unreasonable delay. ACAS has identified that any undue delays may impact on the reliability of evidence which is likely to have an effect on the overall fairness of the process and final decision. This could have implications for employers further down the line if matters were to proceed to tribunal.
Who should investigate?
Anyone conducting an interview or meeting should be impartial and should not have had any involvement with the matter beforehand. An employer should ensure that it follows its own procedures, so if a procedure says a line manager will conduct an interview or a panel, then an employer’s policy should be adhered to.
How should I conduct an interview or meeting?
Conducting interviews with relevant witnesses is also likely to be very different when investigations take place remotely. This may well present challenges where the interviewer and interviewee are not sat in front of each other.
Before the interview can take place, for instance, employers will need to check that participants have access to the required secure internet connection, video conferencing applications or stable phone line.
Once that is established and the required login or dial in details have been provided to the required participants, the interviewer will then need to ensure that the witness has access to a private location and is able to take part in the interview free from noise and other distractions. The same applies to the interviewer.
At the beginning of the interview, the interviewer should ensure that the witness is able to hear (and where appropriate) see clearly. The interviewer should also confirm that the witness is not remotely recording the interview. Where internal policies allow for the recording of interviews or meetings, every participant should be asked to provide their consent to that.
Wherever possible it is best if interviews are conducted via video. That will allow the investigating officer to observe the interviewee’s mannerisms and facial expressions. Questions should be asked clearly and allowances should be made for gaps when the witness is responding.
How should I handle confidentiality and data protection?
It is likely to be harder to control confidentiality when employees are working across several different sites but the contents and outcome of workplace investigations need to remain confidential. Employers should press the importance of this upon all participants throughout the process.
Where information is to be sent or stored electronically, employers must ensure that it is done so in accordance with any internal data protection policies and, more widely, in line with data protection law (and in particular the General Data Protection Regulations).
If employers wish to digitally record a meeting, as opposed to taking a full note, they should make this clear at the outset of the meeting and seek the agreement of all participants.
The key in any workplace investigation, whether it is taking place remotely or in person, is effective communication. By setting clear and concise expectations and providing sufficient information to affected parties, employers can minimise problems and maximise efficiency.