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.
The investigation report should always reflect the decision and reasoning of the investigator – not the aspirations of HR! As we mentioned on the webinar, be careful to avoid a situation like Ramphal v Department of Transport where in the process of checking the disciplinary outcome letter with HR, the disciplinary manager’s recommendation somehow morphed from warning to dismissal without any disclosed explanation as to how, creating obvious scope for challenge. If an investigator is genuinely uncertain about some aspect of the report, in particular around the relevant law and whether it is engaged by the factual conclusions they have reached, we would recommend they take professional legal advice to ensure that both enquiry and response are covered by legal professional privilege.
It is also important to remember that any correspondence the investigator has with HR before the report is finalised will be disclosable, as will earlier drafts of the report. The broad principle is that investigators should be ready for any documents they generate as part of their investigation to be seen by pretty much all parties to it. That means not just the final report and earlier drafts, but also any notes of evidence, any audio recordings, any technical research, and so on.
Investigation report vs. outcome letter – is one/both preferable?
These will generally be two separate documents that have been created for different purposes.
As outlined above, the investigation report is the document that is prepared by the investigator and sets out what they were tasked with investigating, what evidence was collected, the conclusions they reached, etc. This is generally an internal-facing document, i.e. it will not automatically be disclosed to the employee as part of the workplace investigation (although, as highlighted above, it may become disclosable at a later stage, e.g. in response to a DSAR or in any Tribunal proceedings).
The outcome letter on the other hand is, as its name suggests, the document that explains to an employee the outcome of the investigation, be it disciplinary, grievance, whistleblowing, etc. This will refer to the investigation, but will not usually include a copy of the investigation report, because the key question at that stage is the decisions made, not the inputs into them.
This is a key document – the Acas Code of Practice on Disciplinary and Grievance Procedures provides that in relation to both disciplinary and grievance matters an employee must be informed of any decision/outcome in writing. How much detail that letter contains of the thinking behind the decision is a matter of discretion and preference, but as a rule, the more the better.
One question we sometimes get asked is whether the complainant is entitled to see the investigator’s report or the documents behind it, such as interview notes, etc. The starting point will usually be to say no on the basis that employees are entitled to receive a response to their complaint, i.e. the outcome letter, but they are not necessarily entitled to see the basis on which such a decision was made. The investigator’s report was made for the decision-maker to enable them to reach a decision. Having said that, any such report and supportive documents will be disclosable as part of any Tribunal proceedings and as part of a subject access request, so you may decide there is no merit in withholding them in the first place. Hopefully, it should help justify the decision you have reached! More pragmatically, production of a closely-reasoned investigation report will show the employee that there is little point in seeking to challenge that part of the grievance process. An Employment Tribunal will have far more fun where there is no report or the employer’s reasoning is obscure or actively concealed than where the outcome is explained in reasonable detail. There should not generally be anything in an investigation report that the employer should be shy of showing the employee, and selective redaction is often a better option than complete withholding.
If you missed any of our previous posts on this series, they are available to read here:
