Investigations in the hybrid workplace – September 2021

It is becoming increasingly clear that the workplace will not – post-pandemic – be reverting to the way things were. In CIPD’s recent survey around 40 per cent of employers said they expect more than half their workforce to be working from home on a regular basis. This new “hybrid model” with staff being sometimes in the office and sometimes at home (or elsewhere?) is likely to be the norm for many organisations and businesses in the future.

Needless to say, the hybrid world will present some challenges for employers in terms of logistics, service delivery, employee management and compliance. A key challenge will be ensuring that their policies and procedures properly translate and function in the new “hybrid” context.

This blog looks specifically at workplace investigations within the framework of hybrid working, identifying some pros and cons, and considering how best to mitigate the latter. 

Swifter investigations

So often workplace investigations suffer delay due to participants’ poor availability, for example, where trade union representatives or other companions are not around to attend. The enhanced capacity to conduct meetings online (and our increasing familiarity and comfort with the virtual format) will hopefully speed investigations along. Interviews can be scheduled quickly (although participants should still have sufficient time to prepare) while events are still fresh in the minds of witnesses and employees should have better odds of having the companion of their choice. 

Choosing the right format

Another advantage of a virtual investigation is that where allegations are sensitive or relations between employees are difficult, for example, where bullying or sexual harassment has been alleged, conducting interviews remotely can bypass concerns of staff members coming into contact with one another at work and help keep investigations discreet and confidential. A downside is the fact that addressing personal and sensitive topics online can be more challenging and the quality of the conversation and evidence may be undermined when it is given virtually. In the event you are investigating a sensitive allegation, it would be prudent to consult with the complainant and accused to understand what their preference would be in terms of format, and accommodate (to the extent reasonable) and document their wishes. 

To record or not to record? 

The default position taken by most employers for in-person investigation meetings is to prohibit any recording and rely on the notetaker’s record. This is still possible online but enforcing the prohibition is of course more challenging and it may be worthwhile asking interviewees to state for the record that they understand they are not to record the meeting on a personal device and confirm that they are not doing so. A sensible approach could be to record the sessions on MS Teams or Zoom (or whichever online platform is being used) as well as having a notetaker in the usual way. The notes remain the primary record and there is no automatic assumption that the employee will get a copy of the record (which you would then lose control over). However, in the event of a disagreement about the minutes – you can consult the recording if needed, and, if the employee knows the session is being recorded, they may be less tempted to make their own personal recording. 

Involving the companion

Thought should be given to how a companion will effectively communicate with the staff member they are supporting during the meeting (assuming they are in separate spaces). In a virtual meeting, you may need to set up a virtual “break-out room” to imitate the employee stepping outside to consult with their companion. There is of course a tendency to be slightly less formal online and care should be taken to ensure that the meeting remains structured and key information relayed to the interviewee about confidentiality and the process more generally – choosing a suitable backdrop, setting an agenda and following a script can help. 

Reliability and consistency of the evidence
 

The risk that a witness is being prompted or influenced during an investigation meeting is much greater when it is run online. As with the recording prohibition, it is useful to ask the witness to confirm that they are alone (or just with their companion) and their evidence is their own. If you have any concerns about the trustworthiness of a witness you should hold the meeting in person, if you can. 

With these issues in mind, thought should be given to ensuring that an even-handed approach is taken with your witnesses, in particular if you have a complainant and an accused. The method taken with each should be as similar as possible, to guard against criticisms that the process was in some way biased against one or the other.

Regardless of the setting – online or off - the ACAS Code, Guidance and commentary remain your guiding light to help ensure whatever approach you take is procedurally fair and reduces the risk of complaint from the processes’ participants.

If you require further information about anything covered in this blog, please contact Kathleen Heycock, Maria Strauss, Sophia Coles, or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

© Farrer & Co LLP, September 2021