An independent grievance investigation can help you stop an employment tribunal claim in its tracks. Here’s how:
Most of us know that in the long run, not addressing a problem that’s perceived to be our fault is a bad idea. We may think we’ve done nothing wrong, and may disagree with the accusation but not talking about it doesn’t make it go away. It’s the same in the workplace.
When a problem emerges, failure to act can lead to an employment tribunal (very expensive) decreased staff morale (increased attrition rates) and damaged reputation (decrease in profits). Somewhere between a small problem and full-blown employment tribunal is a formal grievance, that needs to be investigated.
To protect everyone involved in a grievance case, the employer must follow a fair procedure
Can’t I just sort it out myself?
Initially you may have tried to solve a grievance yourself. Perhaps it started as an informal complaint or discussion which then escalated to something more significant.
Once a formal grievance has been made then it may become impossible to deal with internally. Sorting it out yourself only works if you can find somebody to conduct a confidential investigation that is totally impartial.
In this blog post what you can expect and why it’s worth avoiding the eye-watering costs of an employment tribunal
You cannot be impartial or fair, if you investigate a grievance that you’re involved in
However far removed the investigator is from the complainant if they are part of the same business, or closely connected to the business in some way, it’s difficult to see how they can be totally unbiased. Impartiality is one of the most important considerations when conducting a grievance process.
What if things have become really awkward?
Let’s be frank; your main objective should be to resolve the situation amicably and acknowledging if you’re at fault. That means dealing with any misunderstandings that might have occurred and definitely saying sorry and putting things right, if you’ve done something wrong.
Even if you’re 100% sure that you’ve done nothing wrong, it’s good to keep an open mind and focus on a positive resolution.
It might be difficult to continue working with someone who has raised a grievance, but don’t let that stop you from doing business and serving your customers.
If you’ve done something wrong, say sorry and put it right as soon as you can
It takes resilience and integrity, but you’ll get through this. Raising a complaint and submitting a grievance is a big deal, so despite any misgivings you may have, try to bear in mind that your colleague/employee is probably feeling awkward too.
How should I choose an independent investigator?
If you’re tempted to conduct an investigation using internal resources, it’s worth bearing in mind that biases or individual concerns may prevent enquiries from being carried out fairly, particularly in those tricky cases when senior team members are accused of wrongdoing.
There are a handful of common sense checks that you can carry out before you choose an external and independent investigator.
You’ll need to be able to trust them implicitly because you’re not going to learn what’s been said until the end. You should also take steps to make sure they’re not connected to your business or complainant.
You can ask for references or speak to previous clients, without breaching confidentiality (of course)
Top tips for choosing and commissioning an independent investigator:
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Do your research, thoroughly – Check their qualifications, credentials and experience. Ask if they’ve worked in your industry or sector before, and whether they’ve had experience investigating a complex grievance in the past. I often find that out-of-sector experience can be an advantage and gives me an edge when I’m interviewing witnesses and weighing evidence; it gives me a broader range of comparison.
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Share the full story to date – Give the investigator a summary of the case, including anything that may have gone wrong in the lead-up to the grievance. You’ll be dealing with a complex case by this point, so you may not be able to share everything until you’ve selected an investigator. When I’m being considered for a grievance investigation, I’m happy to sign an NDA or confidentiality agreement if needed.
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Give clear terms of reference – Once you’ve chosen your investigator, you need to give them a proper brief. The most practical way to do this (and comply with the law) is to issue terms of reference. When I’m working with clients, the terms of reference are invaluable. The terms of reference tell me what I’m looking into and stop me from straying into unrelated areas.
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Keep your nose out – Once the investigation gets going, the best thing you can do is to keep your nose out of it! Don’t ask for updates about what’s said at each interview, you have to let the investigation run its course. When I’m investigating a case, I always keep the commissioning manager informed of my progress, without discussing the detail. It’s important to keep managers informed, so that the grievance investigation doesn’t interfere with the day-job.
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Trust the process – Make sure you understand the process and the timescales at the outset. You need to be comfortable with when, where and how will the investigation take place, so that the process is fair and proportionate, but also so that it happens at a reasonable pace. When I’m investigating a grievance, I have a clear plan which complies with ACAS guidance. It’s designed to make the investigation as quick and easy as possible for everyone, and to avoid negative effects on the complaint, manager and the business.
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Allow access to information and people – Don’t be surprised if your initial witness list and evidence changes during the investigation. If other people are implicated as witnesses or event potential victims, be prepared to allow the investigator to talk to them without asking why. You might find that it’s hard not to be curious and concerns. I always flag if there’s a safeguarding, regulatory or legal concern that might affect the business, so you’ll know if you need to act immediately to prevent harm or reduce risk.
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Be open minded – By the time we get to an investigation, a lot of bad things have been said and there may be bad feeling. Don’t presume one party is guilty and another is innocent until you have the report. You may be treading on eggshells, so I always advise clients not to do anything that might sway proceedings, but also, not to be afraid of managing their business ‘as normal’.
Doing a proper investigation and sticking the process helps to protect you
Remember, investigating a grievance properly and sticking the process, helps to protect you should for any reason the grievance end up in legal proceedings. You will have to demonstrate that you followed all the rules, including your own internal policy, and that you carried-out a fair and impartial investigation.
“I can’t recommend Andrew and The Spark Company highly enough. He helped me to resolve a tricky and confidential employment issue; gave me pragmatic advice and supported me all the way.”
⭐️⭐️⭐️⭐️⭐️ Google Review
What will a good impartial investigator do?
There are some situations in the workplace that are best approached confidentially and objectively. Grievances are top of this list.
You might feel nervous about the prospect of a stranger coming into your team and asking lots of questions. As with any relationship, don’t be afraid to set ground rules and agree clear expectations. This will reassure you and give you confidence.
An external investigator should reassure you, remain objective, and carry-out a thorough investigation
8 ground rules for an independent investigator:
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Conduct an unbiased, expert investigation – Hiring the help of an independent specialist gives you reassurance that the investigation is being carried out without bias or prejudice. This might seem like something straight from the Ministry of the Obvious, but independence brings scrutiny and credibility.
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Gather all the facts at the outset – Most investigations begin with a scoping call to outline the nature of the investigation and other details about the assignment, such as duration. This is followed by confirming the terms of reference and reviewing any documents and evidence that may be required.
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Stick to the brief – If it looks like the scope of the investigation needs to be widened, this shouldn’t be done without consulting the commissioning manager.
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Interview the complainant and review evidence – The next step involves meeting with the complainant and relevant witnesses, taking notes of meetings and reviewing any additional documents or evidence. This can be done face-to-face, virtually, or both. As new evidence comes to light, it may be necessary to re-interview some individuals. Decent investigators consider both the context and the facts being presented. It’s important to understand what was going on at the time that an action was taken, or something was said.
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Share progress about the process not the person – They should keep everything confidential. They may uncover lots of thorny issues which need to be properly untangled. Staying connected with the commissioning manager is important, but don’t expect the investigator to breach confidentiality or give you hints about what is said whilst the investigation is ongoing.
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Understand what’s illegal vs what’s bad practice – The only time that an investigator should share something mid-way through the process, is if they find something serious or illegal that means they have a duty to act. For example, an ongoing safeguarding issue. It’s important that the investigator understands when they have a duty to act.
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Protect employees that may be vulnerable – In some cases, the complainant may be frightened. The consultant should be experienced enough to instigate a process that is appropriate. For example, a meeting with a complainant about a manager who they’ve accused of bullying them, might need to take place off-site. A good investigator anticipates these issues and should support you to look after the wellbeing of those involved … grievances are incredibly stressful.
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Give a comprehensive report at the end – When the investigation has concluded, you’ll receive an investigation report that includes a list of all evidence considered, witnesses interviewed, findings, recommendations and suggested next steps. If follow-up meetings are required, these can also be arranged.
A thorough investigation is also an opportunity to identify what’s going well and how you can improve
Most employers appreciate it when an investigator identifies lessons learned and ways for the organisation to improve. It’s easy to be critical with hindsight; the best investigators will prepare a considered report, offering constructive criticism and highlighting where things went right, as well as missed opportunities to get things ‘back on track’.
A de-brief including lessons learned is something that I offer as standard; after all it makes good business sense to use your investment in an external investigation as a catalyst for improvements in the workplace.
Why is it worth getting right?
Failure to investigate competently could lead to further complaints or even an employment tribunal claim, it makes better sense to hire an external confidential investigator – someone who can carry out the process in a balanced, objective, and efficient manner.
When you take a look at the numbers, the potential costs to a business of defending a tribunal claim are eye-watering.
Compensation awarded in employment tribunals can be huge. Just look at these pre-pandemic numbers:
Average compensation of £10,812 and a maximum of £118,842 for Unfair Dismissal
Sex Discrimination cases paid out £17,420 on average with a maximum of £73,619 in one case
Pay attention to age-related bias; £38,794 average and £243,636 maximum for Age Discrimination
The maximum pay-out in Disability Discrimination case in 2019/20 was a whopping £265,719
But wait, these figures don’t include legal fees, lost productivity, management time, or the cost of time away from your customers
Many business leaders worry about the possibility of an employment tribunal…and with good reason. But when it comes down to it, as a leader you are expected to do what’s right, fair and within the law, every day. This means balancing the needs of your business, your team, your customers and external pressures on a daily basis. Not everyone will like what you do and it takes courage to make tough calls.
An open and positive workplace culture ultimately pays for itself; creating psychological safety and enabling your team to raise concerns quickly, informally, and without fear of repercussions. The result? Issues don’t fester and the risk of employment tribunal claims is reduced.
Remember, there are alternatives to formal grievances, including informal resolution and mediation
If a colleague submits a formal grievance, I always encourage managers to seek an informal resolution if at all possible. It’s better for the health and wellbeing of everyone involved, it helps you get back on track more quickly, and let’s be frank…it’s a better use of your time and resources. (In fact, I’ve worked with several organisations where a mutually agreed resolution has transformed a disgruntled colleague into an advocate.)
But when those tricky cases crop-up and you need to formally investigate a grievance, it pays to make sure that your process is fair, objective and thorough. Given the legal costs, potential compensation, and risk of reputational damage, it’s well worth the investment in a top-notch independent investigator.
“Andrew’s support and advice has undoubtedly saved us tens of thousands of pounds in legal fees, let alone the amount of time and energy we would have wasted on a legal battle. Bringing him in was definitely the right decision”
Source: Confidential HR Investigation client (2020)
Choosing the right HR consultant for confidential HR investigation
If you’re looking for an experienced and knowledgeable HR Consultant to conduct a confidential investigation or have any other concerns relating to the people and culture of your organisation, I’m here to help.
As a police-trained investigator with many years’ experience carrying out investigations on behalf of clients, I’m well-equipped to support you.
Get in touch for a friendly chat about how I can help.
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