Conflict at work can result in a formal grievance, or the need to do a disciplinary interview. Getting this right is essential, to avoid frustrating losses at a tribunal because of failure of process. The trouble is, we usually only get one go at getting it right, as luckily most conflicts can be sorted out before things get this fiery. So how should you do a professional job of an investigation, when you’re not a professional investigator?

Set up the investigation properly

Let people know in writing who you are and how the investigation will work. Cover confidentiality, your anticipated or policy timescales, and their rights of representation and support. Hold interviews in private and on neutral territory if possible, to minimise the ‘courtroom’ effect. And ensure you get all the information you need to clarify the complaint from specifically – what, exactly, are they complaining about, and what examples are they giving (dates, times, witnesses).

The right order for interviews

Remember you are investigating a complaint, not a person, so you’re looking for evidence about the specific allegations or incidents. This means finding witnesses to the complaint rather than for the complainant or respondent. See the complainant first, then the respondent, and ask both for any witness suggestions. Interview the witnesses last.

It’s a workplace investigation not a court!

When you interview people, remember the more relaxed and less threatened they feel, the more information they will give and the better their memory will be. The idea that we tell the truth under a ‘grilling’ is outmoded, so set the scene, describe the process, run through ground rules in detail and check in how they feel before you move into the interview itself. Start off with a ‘free account’ using open questions. Then start probing and seeking information, which will help assess the situation more fully. Summarise along the way to make sure you aren’t misunderstanding or interpreting their words. Then explain what’s going to happen next, and your process for notes and reporting. When you interview the respondent, you do need to give them the specific allegations – the key incidents and issues as described by the complainant – and get a detailed response from them.

Analyse before you conclude

Once the interviews are complete, you need to assess the evidence.

Ask yourself, ‘Have I got all the evidence I need?’ Have I interviewed everyone I need to?  And ‘Have I got evidence on all the issues I need to address?

If there are lots of witnesses to an incident it may not be necessary to interview them all, but to decide who were closest, or who will have had the best view or knowledge of the situation.  It is also necessary to be aware of potential bias in witnesses, and so take a cross-section so they are not all close friends of one party.  Have you seen enough people to be able to make an independent assessment of the truth of what happened?  And have you made a balanced selection from among the potential witnesses to an incident? )

Reach your decision on the facts

As an investigator of a grievance or disciplinary, you need to have reached a genuine view based on the reasonable grounds (from the evidence available), after having conducted as much investigation into the matter as was reasonable in the circumstances (British Home Stores v Birchell [1978] IRLR 379 EAT).Where, on the balance of probabilities, does the truth lie about what actually happened?  Usually, you need to consider different accounts of what happened in order to decide, on the balance of probabilities, what actually did take place.  This is where the evidence of witnesses is crucial in weighing what corroboration for different accounts exists.

Bear in mind guidance from the Court of Appeal (Salford Royal NHS Foundation Trust v Roldan [2010] IRLR 721 CA) which held that the more serious the consequences for the employee, such as dismissal, the more thorough the investigation should be.  Where a case turns on one employee’s word against another’s, it can be legitimate for the employer to give the accused the benefit of the doubt and to find the accusations ‘not proven’.

Writing your report

Have you got enough information to make a judgement on the balance of probability – rather than ‘beyond reasonable doubt’? Check information gathered and go back to people if necessary, then write your report and include:

• Introduction outlining the background, outline of circumstances in which investigation was commissioned, and a brief map of the process
• The complaint – detailed account, examples, and additional information given by witnesses
• The response – detailed account, examples, and additional information given by witnesses
• Your findings
• Include an appendix with:
  • Log of investigation, contact with parties
  • All correspondence