Where are employment disputes coming from in the age of Covid?
At B3sixty we have been keeping an eye on the kind of employment disputes arising during, or likely to emerge as a result of the Covid Pandemic. In this round up we pick out seven …
You are the investigator not the judge
The job of the Investigator is to establish the facts, helping whoever is in charge of the case to decide on the next steps. The whole approach of the investigator should be to demonstrate objectivity in their attitude – towards everyone they meet, in their correspondence, in the interviews with those involved, in weighing up the evidence, and in the final report.
What are the issues?
Some Investigators get off to a bad start by not analysing fully what the issues are that lie behind the complaint or allegation. A key step in the investigation is to clarify the precise issues to be investigated, and ensure that you and the person responsible for the case are in agreement before work gets underway. Be clear about what is not being investigated. Excluding matters can be just as important, and will help keep focus on the issues as the investigation progresses. It will also be of considerable benefit when it comes to drafting your report.
Be careful of your sources
Investigators know that the key to a successful investigation is assembling all the relevant evidence. This means finding all the documentary sources and interviewing potential witnesses. Both have their perils. In the case of documentary sources, particularly if they are provided electronically, you need to take care that they have been obtained legally, and not in breach of the Computer Misuse Act. In the case of witnesses, what they say in their statements should be corroborated, by other witnesses and/or by (legally obtained) documents.
Understand your witnesses
When we are in the throes of an investigation we can sometimes be so focused on the “principals” in the case (the complainant, the person against whom allegations have been made) that we can forget about our witnesses. Yet they are a critical part of evidence gathering. They are often nervous and unsure. They have emotions too! So getting the approach to, the conduct of, and the follow up to, your witness interview right is vital. Spend time making the invitation clear and re-assuring, conduct the interview carefully, and give the witness the opportunity to comment on and agree their witness statement.
Electronic recording, or not?
Should Investigators allow electronic recording of the interview by the person being interviewed? Clearly the first step is to check what the organisational rules are, or failing that any “custom and practice”. Although the Investigator’s instinct is probably to say no, arguing that it could constrain both interviewee and interviewer, there are circumstances where electronic recording could be advantageous to the interviewer as well, and sensibly agreed: for example if English is not the interviewee’s first language or where it could be considered a “reasonable adjustment” for some types of disability. Anticipating this issue is therefore an important part of the overall preparation for an interview.
The power of a breathing space
It’s no doubt a good tip for all types of interview but when interviewing during investigations be prepared to give those involved – and yourself – some breathing space. This could be by the use of a formal adjournment or simply a “comfort break”; or it could be as simple as keeping silent, even after the interviewee has given you an answer, and not just racing on to the next question. Silence at this point can often generate more information.
Tie up the “loose ends”
At the end of drafting your investigation report, go through all your papers again. In relation to the issues identified at the beginning, is everything covered? Is the narrative sensibly ordered and does it make sense? Is the evidence for your findings fully explained and justified? Your report is the only basis on which the person deciding on the case makes their judgment call. They won’t want any “loose ends”.
Do Investigators make recommendations?
Investigators are often asked if they can make “recommendations” as part of their report. In terms of the case itself the investigator assembles the evidence and takes a view, whether or not, on the balance of probability there is “a case to answer”. It is then down to the (different) person, usually the commissioning manager, who hears the case to make the final judgment call. Where recommendations are included in the Investigation Report, these usually relate to wider organisational learning arising from the case. Are the procedures written clearly or being interpreted correctly? Are those involved sufficiently knowledgeable or skilled to manage the case, or do they need training? Recommendations can usefully be offered, but it’s nearly always best to do this outside of the scope of the particular case being investigated.