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 …
In October 2015 Acas published its latest guide, ‘Conducting Workplace Investigations’ that describes a six-step process that employers of all sizes must (by law) and should (by following good practice) make when conducting an investigation. Acas’s recommended approach is very similar to the B3sixty’s own 3-stage, 9-point investigation model, but there are some interesting differences that are examined here.
The Acas Guide starts by looking at the role of an investigator. This is to establish the essential facts of the matter before reaching a conclusion on what did or did not happen. Acas rightly identifies that an investigator should look for evidence that both supports and contradicts an allegation or complaint. It is not an investigator’s role to prove the guilt of any party but to investigate if there is a case to answer.
Acas’s six steps are:
Step 1: Organisational preparation – deciding if an investigation is necessary
Step 2: Investigator’s preparation – drafting an investigation plan
Step 3: Handling an investigation meeting
Step 4: Gathering evidence
Step 5: Writing an investigation report
Step 6: After an investigation is completed – concluding the role of investigator
Acas’s approach starts with a decision on whether an investigation is necessary. However, as the Guide states, making a decision without completing a reasonable investigation can make any subsequent decisions or actions unfair and leave an employer vulnerable to legal action. As suggested by Acas, it may be that a quiet word or informal action is all that is necessary. However, contrary to what Acas seems to be suggesting, B3sixty would say that a prudent manager should still conduct some preliminary fact-finding to check their understanding of the situation.
We would agree with Acas that informal resolution of the matter should still be considered as an option at any stage of the process. It depends on the seriousness of the matter, but it should be recognised that there are risks here: once the formal procedure has started a weaker manager might try to use informal resolution to avoid making difficult decisions; it is also the case that the longer the formal procedure goes on the more likely the parties are to become entrenched, making the switch to informal action ever more difficult.
Having decided to begin an investigation, Acas identifies that an employer should decide on its precise purpose and scope. This is very much in line with the B3sixty approach of having agreed terms of reference with the manger ultimately responsible for decisions in the case.
Acas recommends that, where possible, a different appropriate person should handle each required stage of the process. So, the investigator gathers the facts; a more senior person decides if the facts warrant further action; and, any appeal should be heard by a member of staff who is senior to the decision-maker.
The Guide also looks at what should be considered when deciding who should be the investigator. An investigator must act fairly and objectively. So, in making the selection, a key factor will be the seriousness and/or complexity of the matter, as will the independence, experience and training of the individual concerned.
Acas recognises that, in exceptional circumstances, it may be appropriate to appoint an external consultant. The Acas Guide goes on to say that such a decision “needs to be carefully considered” to “balance the needs for fairness against a cost-effective and efficient investigation”. Although it is not clear exactly what is meant by this caveat, we agree that there will be situations when an external specialist investigator will be appropriate and, in our experience, managers tend to know such situations when they see them. This usually includes a sense that the case is complex, that there is potential for reputational damage and/or legal liability, or that a completely independent person is required who has no “baggage”.
The Guide provides some useful advice on situations that may require an individual to be temporarily transferred or even suspended for the duration of the investigation. B3sixty agrees that some cases will require such action but, particularly in grievance investigations, caution should be shown and the parties involved in the complaint consulted if the employer is not to risk an allegation of victimisation.
The Guide gives some advice on whether to involve the Police when a workplace incident could involve criminal proceedings and, having done so, whether or not management should continue with their own investigation. The guidance here is limited and the link to www.police.uk is also of little utility. B3sixty has advised a number of organisations on this matter, and has developed criteria to guide decision-making at each stage of such a process.
Acas has also included an example of an investigation plan and two template letters. These are simple examples but should be sufficient to provide a framework.
The next step concerns the handling an investigation meeting. The Acas Guide suggests that, whilst investigation meetings will often be needed, some investigations will only require the collection of written and physical evidence. In these circumstances an investigator will not need to follow this step.
Although this may sometimes be true, B3sixty’s view is that this will rarely be the case and certainly not where the matter is serious or complex. There can be no substitute for asking someone what happened as this allows them to explain the situation further from their point of view, and add information. An investigatory interview, well conducted, can give the investigator a much better understanding of the issues, and can provide leads to new information and potential witnesses.
There is no statutory right to be accompanied at an investigatory interview although, as Acas points out, it may be an organisation’s policy to allow an interviewee to be accompanied by a workplace colleague or trade union representative. Our experience is that this can be useful to help the employee trust in and participate in the process.
However, Acas goes further and suggests that an employer might even consider allowing a personal friend or family member to accompany an interviewee if this is ‘reasonable in the circumstances’. There are problems with this approach as it will set a precedent and could allow lawyers to get involved in the fact finding process. B3sixty considers that such circumstances will be rare and should probably be limited to where there are disability issues or where the employee’s first language is not English and a translator is required.
The Guide includes some generally useful pointers on the use of note takers and electronic recording of interviews. B3sixty has similar reservations about the use of technology but it does use note takers, particularly for interviews with the main protagonists in a case. However, it should be noted that the use of internal note takers can cause problems particularly regarding confidentiality and using external note takers has cost implications.
Acas recommends that interviewees are provided with a copy of their statement and their agreement is sought to ensure that this is accurate. The Guide suggests that when the original notes from the meeting are clear they could be given to the interviewee immediately after the meeting. Our experience is that this will rarely be the case, and in event it is difficult to see what this adds, if the interviewee is to be given an opportunity to comment on the draft record of meeting or statement. An investigator should, of course, retain their notes.
The Guide also proposes that an interviewee be allowed to amend their statement but should sign any amendments they make to the original document. We consider that interviewees should be encouraged to take ownership of their interview statements and participate willingly in the process. In our view, the purpose here is to get an agreed record of meeting or statement from the interviewee and, if the investigator agrees that the amendment is a fair reflection of what was said, the change should be allowed without the additional complication of several versions.
However, B3sixty would agree that, where the interviewee wishes to make changes that contradict what the investigator believes was said at the meeting, it may be necessary to note this and include both versions. Some additional guidance would have been useful to cover the situation where an interviewee subsequently wishes to add information not raised at the interview. In such cases B3sixty would allow the interviewee to submit additional information albeit separate from the interview record of meeting or statement.
The Acas Guide states that an investigator should establish the ‘the facts of the matter as far as is reasonably possible and appropriate’. We would agree: there needs to be a degree of proportionality about the scale of an investigation taking into consideration the nature of the issues and the resources of the organisation.
Having completed an investigation, we disagree with Acas when it is suggested that a written report is not always necessary. It is hard to think of a situation where a written report should not be produced. B3sixty considers that a proper record of the outcome of an investigation is essential should management action be subsequently challenged at internal appeal or in a Tribunal.
Acas recommends that an investigation report should have the following sections:
Introduction; process of the investigation; the investigation findings; conclusion of report (i.e. recommendations if required); supporting documents.
The Guide recommends that a report’s findings should state what facts have been established; what facts have not been established; and, whether there are any mitigating factors to consider. A B3sixty report would have a similar structure but it would be more specific in its findings – it would determine whether or not, for each issue identified at the start, there is “a case to answer”.
Acas gives some useful tips and techniques for writing a report and underlines the importance of an investigator reaching findings based on the balance of probabilities. The guide also recognises that investigators may be asked to make recommendations and states that they should restrict their recommendations to whether any further action may be necessary or beneficial. In most circumstances an investigator should recommend formal action, informal action or no further action. Curiously, Acas goes on to say that the investigator should not discuss what sanction might be imposed if a disciplinary charge is established, so the guidance appears somewhat contradictory on this point.
B3sixty believes that it is not the role of the investigator to make recommendations on how the case should finally be determined. A clear separation must be kept between the role of the investigator and the role of the decision-maker. The purpose of an investigator’s report is to determine the facts, and thereby enable the appropriate manager to reach a sound decision, not to intrude on the decision-making process. Any recommendations by B3sixty investigators would typically be limited to addressing shortcomings found in policy, procedures, management training or organisational culture and would be made separately from the investigation report.
The Acas Guide concludes with some sensible advice on the retention and disposal of a report and the rights of individuals to see parts of the report that contains information about them, or that is reliant on information that they have provided. To which we would add the retention and disposal of interview notes and any other evidence retained by the investigator.
Overall, the ‘Acas Guide on Conducting Workplace Investigations’ is a useful and comprehensive management aide memoire. Although B3sixty disagrees on a few points of detail, we recommend the Guide to anyone involved in discipline and grievance investigations.