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.

Any tips on dealing with internal investigations running alongside official police or regulatory investigations?

Where an internal investigation involves potential criminal or regulatory misconduct, there are a number of additional considerations for employers to take into account, including:

  • The prospect or commencement of criminal/regulatory proceedings does not remove the obligation on an employer to make its own enquiries into any alleged misconduct.  The non-statutory Acas guidance on discipline and grievances at work confirms that (i) an employer should investigate the facts as far as possible, come to a view about them and consider whether the conduct is sufficiently serious to warrant instituting the disciplinary procedure; (ii) where the conduct requires prompt attention, the employer need not await the outcome of the criminal prosecution before taking fair and reasonable action; and (iii) where the police are called in they should not be asked to conduct the investigation on behalf of the employer, not should they be present at any meeting or disciplinary meeting. 
  • Remember – the purpose of any workplace investigation is not to establish beyond all reasonable doubt whether the employee committed the alleged misconduct, but only whether there are reasonable grounds for the employer’s belief (on the balance of probabilities) that there has been misconduct to which a reasonable response was to dismiss/impose some other sanction.  Those different burdens of proof mean that it is unwise for the employer to tie its way forward too closely to the progress of any criminal enquiry.  Not only may that take far longer than it is prepared to wait, but criminal charges may not be brought, or be discontinued, or the employee acquitted all on procedural or evidential grounds which get nowhere near preventing the employer reaching its own conclusions on that balance of probabilities.
  • Sometimes an employee may refuse to take part in a disciplinary investigation if criminal/regulatory proceedings are pending, perhaps because of legal advice that participation may prejudice any such matters.  If an employee remains silent at a disciplinary hearing, this does not mean an employer cannot make a decision on the information available to dismiss the employee or impose some other sanction.  There is no “right to silence” in employment proceedings.  This should be spelt out to the employee so they are aware of the potential consequences of refusing to participate in the hearing.  This approach is confirmed in the Acas guidance referred to above.
  • Be clear from the outset about the scope and purpose of any investigation, including any interviews, as this may affect how they are carried out, whether the employee should have the right to independent legal representation and whether they should receive any formal warnings before being asked to answer any questions.  This is particularly so in relation to potential criminal misconduct or where the employer itself may face criminal proceedings, e.g. around health and safety or regulatory infringements.
  • Take care to ensure you do not do anything that might prejudice any potential or actual criminal or regulatory investigation.  Take into account any guidance published by the relevant regulator/agency and also consider whether it is appropriate to consult them before conducting any interviews.
  • Assess the risk that any admissions by employees may give rise to corporate liability and any impact that might have on the process that is followed.

We would recommend that an employer takes legal advice in relation to any workplace investigation that may involve potential criminal or regulatory misconduct in light of the issues outlined above.

For a more detailed look at workplace investigations, take a look at our recently updated Relatively Informal Guide to Workplace Investigations.  

If you missed any of our previous posts on this series, they are available to read here: