External investigations into allegations made within an organisation

An investigation is a fact-finding exercise to collect and assess all the relevant information pertaining to allegations/concerns. It can help an organisation decide whether any further action is required and if so, what action would be appropriate in the circumstances.

In order for an organisation to be able to make appropriate decisions about action to be taken, it is often desirable that the investigation is conducted externally to the organisation. This is to ensure both that no bias affects the investigation or findings, and that there is no perception of conflict of interests. The organisation can then make a fair decision about what (if any) further action needs to be taken to address concerns raised.

The organisation should agree with the investigator the terms of reference (the issues to be considered and decided on), but following that their involvement in the investigation should largely cease, allowing the investigator to proceed completely independently.

The key consideration is that the investigation and investigator are independent. They should not be connected to any of the relevant parties in any way.  Acas, the advisory, conciliation and arbitration service, has published guidance on conducting workplace investigations.  This also highlights that what is most important is that whoever is chosen to be the investigator acts fairly and objectively.

Reference should be had to any relevant policies or procedures that may prescribe how certain elements of the investigation should be conducted.  These will also inform the investigator as to what standards of behaviour are expected in general.

An investigator only needs to carry out a reasonable investigation. This means that they are not obliged to investigate every detail of every matter, but only have to reasonably investigate that which is likely to be important and relevant to the issues at hand.

Specific processes or procedures may be governed by company policy, which is why it is important to have regard to these at the start.  However, generally speaking, the investigator should:

1. Agree terms of reference with the organisation. Wherever possible, these should be agreed with a director, manager or HR professional at the organisation who has no personal involvement with the matters under investigation.
2. Agree a provisional timeframe within which the investigation should be completed. It may not always be possible to adhere to this, particularly if unforeseen issues arise during the course of the investigation. If this happens, it is important for the investigator to keep the relevant parties informed.
3. Review any relevant policies and procedures.
4. Consider the issues that need to be explored/clarified.
5. Collate any evidence that should be obtained to inform the investigation, such as documentation or CCTV.
6. Interview the complainant to gain a full account of what they are complaining of.
7. Following that, the accused should be interviewed to obtain their version of events.
8. Interview any other relevant parties, such as eyewitnesses, or witnesses to whom the original complaint was made.
9. If necessary, the complainant and/or the accused should be spoken to again, to put further evidence to them and obtain any further account from them.

Each investigation is different, so the order in which some of the above (particularly the gathering of evidence stages) may vary.

The investigator will then compile an investigation report, and often an executive summary. These will detail the terms of reference and process that was undertaken as part of the investigation, as well as a summary of all of the evidence obtained. Finally, the report should detail the investigator’s findings. These are whether, on the balance of probabilities (ie whether it is more likely than not), the investigator concludes that the allegations detailed in the terms of reference have been proved by the evidence obtained. The report is then usually shared with the organisation, the accused and the complainant (although there will be circumstances where it is not appropriate to disclose it to the complainant).

Following receipt of the investigation report, the organisation can then make a decision as to whether to take any further action in terms of the accused or in a wider sense (such as amending policies and procedures).

Generally, whether any interim measures can be implemented will depend on the individual policies of the organisation.  However, the organisation will need to consider the risk to both the accused and the complainant, particularly if they are still working together. If the allegations are serious, the organisation may feel it is necessary to either temporarily transfer or suspend the accused.  This is a matter for the organisation, and the investigator should not make decisions about interim measures (although can make recommendations if they feel it is appropriate).

If there are parallel criminal proceedings, the organisation will need to determine whether to wait until the conclusion of those or proceed with its investigation.

If you require assistance with an internal investigation, call our regulatory lawyers on 020 7183 8950, email us or complete our secure online enquiry form.