Here are the last couple of questions – and our outline answers – following our recent webinar on Handling Workplace Investigations. 

Who writes up the conclusion, the investigator or HR?

As a general rule, it should be the investigator who drafts the investigation report, being the person who conducted the investigation. 

It is of course possible to have templates to ensure managers cover all the relevant bits and these may have been put together by HR.  Similarly, HR can also provide advice on what the report should contain, how it should be set out, points to consider etc., but it is very important that HR does not overstep its remit and inadvertently cross the line from advisor to decision-maker. 

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Here are a few more of the questions – and our outline answers – following our recent webinar on Handling Workplace Investigations. 

Can a witness refuse to participate due to a conflict of interest, e.g. a family member under investigation?

The fact a member of the employee’s family is under investigation does not automatically disqualify the employee from giving evidence as part of any workplace investigation or mean that they cannot be interviewed as part of the investigation. It should however be something to consider when assessing the weight to be attached to any evidence given by the employee – as they clearly may have a personal interest in the outcome of any proceedings!

An employer cannot force an employee to give evidence as part of a workplace investigation but attendance and cooperation will usually be a reasonable management instruction and an employer may therefore decide that if an employee refuses to cooperate to any material extent they should be the subject of formal disciplinary proceedings – though this is relatively rare in practice.  The employer would also be entitled to draw inferences from the relative’s reluctance to give evidence – if that evidence would have been in the accused’s favour, why not? – and so such a refusal is unlikely to protect the employee anyway.

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Here are a few more of the questions – and our outline answers – following our recent webinar on Handling Workplace Investigations. 

Does the notetaking at investigation meetings need to be verbatim?

No.  There is no requirement for meeting notes to be a verbatim record of everything that has been said – not only can this make any meeting notes incredibly long and tedious, but often it can mean you lose the key points made amongst all the other chatter that has been captured.  The meeting notes should seek to provide a comprehensive summary of what has been said, capturing the key points.  You can put particularly telling choices of words or phrases in quotation marks if the exact terms of the evidence are seen as important in order to show that that was what was actually said, not your summary or paraphrasing of it.

If a meeting takes place virtually, do you recommend using the transcribe function to help with note-taking?

We would recommend caution before adopting this approach.  Although such technology can make things simpler and it can potentially save you having to arrange for a separate note-taker to be present, in our experience it is still not 100% accurate.  It also does still mean that you end up with reams of notes and it can be difficult to see the wood for the trees when it comes to the key points that were discussed.  See our previous blog for a fuller discussion of the issues to consider when using voice recognition technology to take notes of meetings.  Whether your meeting is physical or virtual, beware of the possibility that the employee may be recording it covertly, perhaps even in the face of clear instructions not to do so.  As a result, it is never safe to rely on the transition from transcribed notes to a polished final product as somewhere to “refine” what you said.

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