In this month's webinar with the HR Suite, Caroline Reidy, Managing Director of the HR Suite discusses "Insights on Investigations".

When issues such as harassment, discrimination, misconduct, or conflicts arise, HR professionals must conduct thorough and unbiased investigations to address these matters appropriately. Investigators must employ critical thinking, ethical considerations, and effective communication skills to ensure fairness and accuracy throughout the investigative journey. Gain insights into conducting effective workplace investigations. An overview of best practices for handling sensitive issues, interviewing techniques, maintaining confidentiality, and ensuring fair outcomes. Elevate your HR skills and contribute to a safer, more harmonious work environment by watching this informative session.

Recording:

Transcript:

Julie:   Good morning, everyone, and thanks for joining us. Welcome to our webinar, "Insights on Investigations". My name is Julie Holmes, and I work in the Knowledge Team at Legal-Island. And today's guest is Caroline Reidy, Managing Director of The HR Suite. Morning, Caroline. Thanks for being here.

Caroline:   Morning. I've cheated and got a nice cuppa before I start, Julie, this morning. So I feel extra bonused.

Julie:   You're just right because I think there'll be a lot of questions on this one today, Caroline, as well.

I just wanted to also thank our sponsor, MCS Group, who sponsor all of LI's webinars and podcasts. So MCS help people find careers that match their skillset sets perfectly, and they also support employers to build high-performing businesses by connecting them with the most talented candidates in the market. If you're interested in finding out more and about how MCS can help you, then head to www.mcsgroup.jobs.

So you've met Caroline. You know that she's comfy with her cup of tea, so she's ready for all of your questions. Caroline is a past member of the Low Pay Commission and also an adjudicator at the Workplace Relations Commission. She is CIPD-accredited, as well as being a trained mediator, and she's worked across various areas of HR with a wealth of experience for over 20 years prior to setting up The HR Suite in 2009.

So in this month's webinar, Caroline is going to look at investigations. When you have issues such as harassment, discrimination, misconduct, or any of those other conflicts that arise, HR professionals must conduct thorough and unbiased investigations to address these matters appropriately.

Investigators must employ critical thinking, ethical considerations, and have effective communication skills to ensure fairness and accuracy throughout the investigative journey.

So just to remind everybody, there are no slides for the presentation, but we'll have the recording available for you over the next few days.

And if you have any questions for Caroline, please pop them into the question box and we'll have time at the end as always for your questions and answers.

Maria, I think we're going to kick off with a poll question, so if you could share that slide for us please, that would be great. Just out of curiosity, have you found that with increased remote and hybrid working that workplace investigations have increased, has it decreased for you, or has it stayed the same?

Caroline, not sure about your own views on this, but I know for me, investigations tend to be a bit like buses. You may not have any for a while and then you can have a slew of them arrive at once, and it's important to make sure that they're all treated with the same type of care and attention.

Caroline:  Well said. I agree with you completely.

Julie:   Okay, great. So, Caroline, I'm going to hand over to you and then I'll be back in a little while to ask some of your questions. Thanks very much, everybody.

Caroline:  Super. Thanks, Julie. Good morning, everybody. Really great to see so many of you joining us this morning. As always, you're all very, very welcome.

I suppose this morning's topic we basically decided was something that would be very topical, because without doubt, we found a huge increase in the amount of investigations that we're involved in from a third-party point of view, where companies would contact us to ask us to be the investigator or the outcome manager or the appeal manager.

And without doubt as well, we always try and firstly suggest, "Look, have all other avenues been exhausted? Has mediation been offered, etc.?" For me, an investigation and going down the formal route is a last resort. It's often obviously the only route available because somebody has made a formal complaint. But my advice always is to try and de-escalate where possible, and that's why the role of contact persons in organisations is really, really great.

And we know in line with the new bullying code of practice where contact persons have been strongly encouraged, you would train your contact persons in the organisation so that if somebody is experiencing an issue or a perceived issue, they go to the contact person because they often may feel they don't want to go to HR. The idea is to quench the fire where possible.

So again, just a reminder as we start today's process, because for me, once it gets to an investigation, somebody's right or somebody's wrong. And normally, you need mediation at the end to remedy or repair the relationship, especially if it's interpersonal conflict between the parties.

The other important caveat to note is, again, in line with the new bullying code of practice, you'll have updated your policies at this stage, as you are required to do. One of the requirements is to remember that a preliminary screening has to occur before you send a bullying allegation for investigation in line with the formal procedure.

It's to ensure that separation of process. That needs to be done by somebody who's not involved in the actual investigation or indeed any of the other process. So again, there are a few steps you need to take before the formal investigation is going to kick off.

A formal investigation can occur because of a complaint an employee makes or raises in line with the grievance procedure, in line with the bullying, harassment, or sexual harassment policy, which is generally known as the Dignity & Respect at Work policy.

An investigation can also be invoked because the company instigates an allegation into perceived misconduct, gross misconduct, etc., or indeed any other breach of policy.

And it's important when you start any investigation that you're clear at the outset who the parties are going to be in terms of managing the separation of process. So who's going to be the HR adviser potentially, if you need an HR adviser to be involved in guiding the process if you don't necessarily have that resource in-house? Or indeed sometimes you have the HR resource, but they're actually needed to do some element of the process.

First key point is managing separation of process, which means somebody unrelated to the process, i.e. they're not involved in advising, they're not involved in the outcome, and they're not involved in the appeal, is appointed to do the investigation.

 In The HR Suite, we always advise that if anybody is appointing somebody who is not a trained HR professional, that they would do investigation training. We have a very short eLearning course people can take which gives them the kind of key watch-outs that they need to be mindful for.

A lot of the cases in the WRC that have fallen foul of process, which is one of the key elements that we're responsible for ensuring everybody gets fair process, is the fact the investigation process wasn't managed or handled professionally or appropriately. And again, from a company point of view, we've already fallen down if that is the case.

The second thing, as well as appointing somebody who is competent to do the process, we need to make sure it's somebody who's got the time available to do the investigation in a timely manner.

Again, a lot of investigations are drawn out over a long period of weeks and sometimes months. And again, we have an obligation . . . remember, at the end of the day, the organisation is the person who is responsible, i.e. whoever in the organisation that is that person who is managing the process, for ensuring it's done on a timely basis.

So when you are appointing that investigator, you're making sure that they are available and can do the process in a timely manner.

In some investigations, there's more than one investigator, but there'll always be a lead investigator. So who is the key person that is going to be accountable for making sure all the processes are followed, it's done timely, and the report is produced, which is the output of the investigation? So again, key reminders, I suppose.

Again, today on this webinar I've tried to focus on areas that I see where people fall down and that there are key concerns, then, procedurally as a result of that.

I suppose we always have to consider if somebody objects to an investigator that is appointed, and one of the key elements of objective biases is the bias, whether it's in perception or whether it's in reality, we always need to consider what the person has said in relation to that bias.

If somebody says, "Well, look, I'm not happy with the person doing the investigation because they're appointed by the company as the investigator", every person that's going to be appointed is going to be appointed by the company. So that's not going to be a legitimate reason, for example, as to why you might not go with that investigator.

But if they were to say, "Well, look, that investigator goes for tea with that person and I perceive them to be friendly", that would be a legitimate reason as to why you might then ask them to bow out and recuse themselves.

I always believe that it's safer to not have somebody that's connected, particularly for trickier, challenging investigations. But I will also appreciate that there's only a limited amount of trained personnel in the company that you can call on. That's got to be a consideration as well.

But if there is an objection to the person, make sure that you go back with a reasoning as to why you're either not going ahead with them, which can be, "Look, we're taking on board what you've said and we're appointing somebody else instead", or, "We're not in a position to, but this is the rationale why we're going ahead and how we feel that there's not going to be a conflict of interest". So again, start with that premise.

The other next key starting point is to be clear which policy is allegedly breached. Every company policy is different and we've got to make sure that you're very clear as the investigator in relation to what exactly it says in your policy and what are the details of that policy.

So always read the policy in advance of starting any investigation so you're clear in relation to the requirements. And that policy is your discipline, your grievance policy, also the alleged breach. So for example, if it's the honesty policy, if it's the dignity and respect policy, etc., you read that so you're clear in relation to that alleged breach also.

And for me, one of the really most important documents when you start an investigation is the terms of reference. The terms of reference are what the company give you as the investigator to clearly make out both for you as the investigator and also for all the other parties that are involved, "What is the scope of the investigation, and how will the investigation roll out in terms of process?"

So in that, it'll explain the role of the investigator. It'll explain the parameters, it'll explain the policies, and it'll remind all the parties of confidentiality and the importance of maintaining confidentiality.

It'll also explain the role of witnesses. It'll also explain the report, when it'll be drafted, whether there's going to be a draft for all the parties to comment on, or whether that report is given directly to the outcome manager and the person involved.

So again, the terms of reference is a document that requires time and consideration in drafting it to make sure that it is comprehensive, because it avoids a lot of ambiguity when the process commences. If you iron out all those elements at the start, everybody going into the process is clear from the outset.

It also addresses things like recordings, again, at the outset rather than them raising their head during the process, which sometimes they will. And I suppose, as investigators, we need to be prepared for different things that may arise.

We're seeing more and more people requesting to record meetings. And again, I've no strong preference one way or another, other than the fact that I also take notes because I find them really beneficial.

But again, you need to decide what is the company policy because, ultimately, if you go outside of that, you potentially are setting a precedent. But you may have rationale as to why you might do that.

It's also really important to remember any other considerations, like somebody who might be neurodiverse may need reasonable accommodations. You might have somebody who is out sick but still wants to partake in the investigation. Again, you need medical certification that they are fit enough to partake in the investigation even though they mightn't be fit enough to return to work.

So there's a number of considerations that arise depending on the scenario. And again, for the investigator, it's always really helpful to have somebody available to them in HR, etc., so that they have that phone-a-friend.

For example, if they're saying, "So what do I do?" or the person wants to know if the hearing can be recorded, again, they have somebody that they can ask.

But it's really important that HR or advisory person doesn't step into the role of investigator. They're there just to advise in relation to procedural queries that the investigator may have.

So then the investigation itself, once the terms of reference are agreed, it really does help. And then, for me, the code of practice, the S.I. 146 in relation to discipline and grievance should be part of each company policy, but it's one that we need to remind ourselves of if you're maybe out of practice in terms of doing investigations.

And fundamentally, the rules of natural justice are going to be core to all of our investigations. So making sure that the person is really clear in relation to the allegations being made against them, really clear in relation to any evidence that we're going to rely on, and they get an opportunity to comment in relation to that.

Also, in relation to the right to representation, again, that should be referred to in your policy so that they're clear in relation to that. They have a right to separation of process, which we are ensuring by having independent people involved and impartiality, again, which we are ensuring that we address and we've touched on already this morning.

So those rules of natural justice also require the opportunity of appeal. Again, as I mentioned, you'd normally have the investigation manager, the outcome manager, and an appeal manager so that you can facilitate the fact that there are three different parties involved should they wish to invoke each of those.

That ensures your separation of process and your impartiality of the three independent people being involved. So again, important to ensure that that occurs.

I mentioned the timeliness, and it's important for all the parties involved that they make themselves available. So for example, if somebody says, "Look, I'm on a week's holiday. I can't be involved for that specific week", that's fair and reasonable. It's one week. But if somebody was to say, "Look, I'm not available for a month", that would be excessive. And the expectation would be that you need the person to make themselves available to be able to partake in the investigation in a timely way.

Suspension, I suppose, is something we see happening less, and we've had recent case law to reiterate and remind us that suspension should only be done in exceptional circumstances where it's really warranted. And you need to have a very good reason as to why.

So for example, the same alleged offence may occur, somebody could cover up evidence, for example, or there might be a health and safety risk. So it's those types of scenarios.

In some cases, the company would talk to the employee and explore the option of whether they'd like to take paid leave during the process. But again, suspension shouldn't be an extortionate amount of time.

We do see that happening. Again, it's already impacting the process because the person is alleging, "Look, I've been out for this period of time. Everybody is asking why, and it's not assisting to the fact that I'm innocent until proven guilty". And that's a reasonable thing for somebody to say.

So again, you must really think about the suspension. And if somebody is being considered for suspension, you need to also show that you've considered all other avenues and options. For example, transferring them to a different area, restricting their access, etc. So again, you show that the suspension was an unavoidable option.

You'll have heard me all morning in this session talk about . . . every time I mention an incident or an investigation, I'm using the word alleged. And it's really important that the integrity of the process and all of the parties involved ensure that going into this process, it's all about, "This is an allegation and everybody is innocent until the evidence proves different", if that was to be the case.

So you need to be very careful and very clear that it is alleged, and that's why suspension is something we must tread so carefully with. Obviously, it's necessary in some occasions, but it is one of those that you need to tread carefully with.

A few other considerations then. Since the, I suppose, introduction of Teams and remote, more and more investigations have transferred to online. If that is the case, the same principles of natural justice apply where the person is entitled to the right to representation, the right to confidentiality, etc.

And if the person has a preference for in-person, you need to, again, consider that and identify why you are facilitating remote instead and if there's any disadvantage to the person, particularly if they feel from a neurodiversity or a reasonable accommodation perspective that doing it remotely presents them an additional layer of challenge.

We always, during this process from the very start, offer all the parties the employee assistance programme and appreciate the fact that each of the parties involved, especially if there's more than one, need to know who they can go to that will give them support and who they can go to that will answer queries, etc., that they may have.

And oftentimes how as an organisation we treat the person who is the complainant and the person who is the respondent can be quite different, yet both parties are innocent until proven different.

So we, again, have to be very careful. And it is no matter what the allegation is, it's a very stressful process for the parties.

And again, maintaining the confidentiality with colleagues, etc., is really important. Considering witnesses is something that if the parties put forward witnesses, I always try and take all the evidence that the parties give me and make sure that I consider all of it.

So again, the more opportunity you're giving the person to have that opportunity to be heard, the better that is to ensure the fair process.

And remember, one of the key elements to any investigation is that the parties really need to ensure that they've been given that opportunity to be heard and we've exhausted that opportunity to be heard. So if any employee says, "I want to tell you this as well", you really need to make sure that you are giving them that opportunity to be heard.

And at the end of any investigation meeting, I always ask the parties, "Is there anything you'd like to add that I haven't given you an opportunity to tell me at this stage?" Again, if the person feels they've got that opportunity to be heard, they generally feel a lot better about the fact that they're getting fair process and they're getting that natural justice that they absolutely deserve.

I suppose there are a lot of challenges to investigations and, ultimately, different things arise, whether that's dealing with somebody who's very emotional, whether that's dealing with a difficult representative that's with the person who doesn't want them to answer the questions or is answering on their behalf, or, again, if you're doing it remote and you have challenges with technology etc.

But ultimately, your job is to provide fair process. So you have to keep coming back to, "I'm here to make sure that I hear all the evidence and I get the opportunity to hear that from the parties in a fair and in an unbiased way".

If that requires you to come back and reconvene, if that requires further meetings with witnesses, if that requires the person saying, "Well, I didn't see that evidence or I haven't had the opportunity to review it", we give them that further opportunity.

So, there needs to be reasonableness in your approach so that the person is not feeling that they're being rushed through the process, yet that's balanced with timeliness. So unless they're, as I say, away on holidays, they should be available for the investigation, and all the parties should make themselves available in that fashion. Again, I think that's really key to ensuring fair process.

The final point for me then is the report, and I'm going to be delighted to answer your questions then. I know we've lots to get through. So if you have any further questions, feel free to come back to Julie.

But my final point, Julie, was just to touch on the investigation report before we do that. And I suppose, for me, the investigation report is the main output from your investigation. So once the investigation is concluded, anybody should be able to pick up that investigation report and fully understand what is the allegation that was made, what is the alleged breach of policy, and what did the evidence tell you as part of that investigation. So that's your ultimate role, and that output is that investigation report.

 Nobody, i.e., the outcome manager or the appeal manager, should need to have a conversation with you to look for clarity, for example, in relation to other elements of it. All that information should be in the investigation report. And remember, that's your end product of the full investigation.

Julie, delighted to come to you. I know we've lots of questions. Hopefully, that was helpful for people just to give them an overview of what I see as the key challenges and key watch-outs just to be very mindful of in relation to investigations.

Julie:   That's great, Caroline. It was very comprehensive even though it was an overview, and I think that we've got a whole range of questions. So we'll start off with a couple of them. The first one is about who can initiate a workplace investigation.

Caroline:  So there are a few parameters around that. Anybody can request an investigation. However, I suppose we've a responsibility from an HR point of view, I always feel, to tease out with the person what they understand by what the action they've taken is.

Sometimes somebody writes an email or makes a complaint and they feel that that's the only avenue available to them. I think it's important that we take them through the policy and explain, "Look, there's the informal route, there's a secondary informal in many, there's mediation, and then there's the formal route". So I think that's the starting point for me as soon as somebody comes and talks about an investigation.

And then secondly, we need to see does it meet, for example, the definition of bullying in the preliminary screening stage. So it's not an automatic rite of passage.

And then, obviously, the organisation can equally do an investigation into an alleged breach of policy in relation to alleged misconduct, etc. So it can be the organisation or another individual, but there are some caveats.

By the way, I'm never saying that we deny somebody the right to have an investigation, but I think it's important to ensure fair process to all, and from a company point of view that we just explain the options to them as well. And then if they want to go down that road, then that's the only avenue available.

Julie:   Thank you. And just following on from that, somebody has asked about if an investigation is commencing based on behaviour misconduct and those concerns that were raised by the line manager, would it be appropriate for the line manager to conduct the actual investigation? So when you mentioned about your preliminary evaluation of that, what tips would you give on that?

Caroline:  I would say definitely not. They are going to be involved as a witness anyway because, obviously, they're a key person involved in the process. So I would say definitely not. I wouldn't have them anyway involved other than as a witness to give evidence to say whatever behaviour was alleged. And it's likely that they're the person equally putting in the complaint to initiate the investigation.

Again, I mentioned a lot of the WRC cases don't fail because . . . and we've seen all the case laws to back this up. They don't fail because the punishment necessarily didn't fit the crime. Most investigations are flawed in process to result in the case being an issue.

So, making sure you have a competent investigator that is unbiased and unrelated to what is alleged are key starting points. And again, they have the time available to them, Julie.

Julie:   I think that time is a very appropriate question as well, because it is an important part of it. And you mentioned about being fair to everyone, especially the person that is the subject of the investigation or the allegations as well.

So the second question then, and you touched on this a little bit when you talk specifically about maybe difficult companions, but sometimes there can be some confusion over whether you should allow an employee to bring a companion to an investigation meeting. So what guidance would you provide around that?

Caroline:  I would say, firstly, what does your company policy say? The company policy is always my guide. And obviously, because of the nature of the job I do, we are dealing with public service, private sector, etc. There are lots of different scenarios as to what the policy might say.

In principle, though, I think once you set the ground rules for the companion, the person who is with the person, and explain, "Look, you're not there to answer any questions. You're there as a support, etc.", once you set the ground rules, it's not a bad thing when the person is very emotional, etc.

However, if you have a company policy and it says, "You can't have somebody with you", and we allow it, you could be changing your precedent. So company policy is always my guide.

But there are certain scenarios it is appropriate for them to have somebody, so somebody who actually feels from a reasonable accommodation point of view that they need somebody with them, somebody who's particularly upset or emotional. And that helps the investigator, being honest, because they've got somebody who's able to manage that emotive piece and kind of keep that in check and support them in that regard.

So I would never say that's a black-and-white one. I think it's one that you would consider and you'd kind of give it reasonable consideration in relation to their rationale.

Julie:   Great. And then last question from the slide is about suspension during an investigation. You did mention the fact that there are potential pitfalls with that. Maybe we don't see it as often. Again, it's all about that fairness. And I think you mentioned about some cases . . . there was one in particular where it was five employees involved, but only three of those people were suspended, which wouldn't have been looked on favourably.

So can you talk us just through what type of checklist you would have if you do think it's serious enough, or what warrants actual potentially suspending someone?

Caroline:  Of course, Julie. First of all, again, the concept of what does your policy say is always our default from an HR point of view. Hence why, as practitioners, our requirement to update those policies on an on-going basis is a six-month review nearly in relation to the amount of changes that occur. But your suspension really should be on an exceptional circumstance.

And I suppose I use the word exceptional purposefully because if I say reasonable, we could argue that everything is reasonable, that the allegation is warranting it. So the reasonable piece, I think it needs to be higher than that. It needs to be, "Why is it necessary that there's no other alternative but to suspend the person?"

Suspension is always paid. Otherwise, it's a sanction or a penalisation. And if that person is going to be paid while they're out, they obviously need to be available to partake in a timely investigation. What you don't want is for somebody to be out on suspension for a prolonged period of time.

And we've seen some high-profile cases where the concept of timeliness hasn't done . . . It doesn't ever assist the concept of fairness, not a mind the impact on the parties from a wellbeing point of view.

So the rationale, I suppose, has to be that we've looked at all other options. So say you have somebody and they're working in a role. You might say they hit somebody. Let's go somewhat to an extreme. And the alleged person says, "Well, I was provoked and it was this, that, and the other", and there's an investigation required.

Rather than suspend because we're worried that there is going to be a repeat potential risk of it happening again, instead we might say, "Can we transfer the person to another area on a temporary basis? Can we actually transfer both parties?"

Again, you have to be careful that if you transfer one party and not the other, is that penalising one over the other? So there's a number of factors, particularly when you have more than one person involved. All the parties need to be treated the same.

Remember what I said when I was doing my kind of run-through at the start, Julie. Often how we treat the complainant and how we treat the respondent can be very different. And our actions show and imply that even though we're talking about an allegation, we're acting as if one person is guilty and the other one is not.

That's why, for me, that element of making sure they all get the employee assistance programme. If we're looking at suspension, we're considering both parties in that regard, not one over the other, etc.

So you have to look at all alternatives, and suspension is the only one . . . And I would write to the person involved to explain, "Look, this is an allegation. The suspension doesn't imply wrongdoing or penalisation. It's going to be paid. We did look at all other options. We looked at transferring you, we looked at you working remotely, we looked at this, that, and the other, but there was none of those options available. So, therefore, to ensure health and safety of all the parties pending the investigation, then we've come to this conclusion. But we aim to have the investigation done in a timely manner".

So then you are at least confirming in writing all of the other elements that you've done, because the paper trail is key to this element of the investigation and from fairness, transparency, etc., and, again, that investigation report, which is the all-important document that's produced at the end. So we need to make sure that that's all considered as part of that.

Julie:   Great. And I think just to almost summarise from that, what you're saying is that suspension should be seen as a neutral act. It's certainly not a punishment. And that should be explained to the person. Emphasise it's paid.

Then as you said, as well, it's almost managing that confidentiality and what people think or what people know, because then the rumour mill . . . And if the allegations are proven not to be upheld, that person is coming back to work. And so that's a whole other relationship to manage.

On that topic, we do actually have quite a few questions all around the support for people. I know you mentioned that employee assistance programme. So what other support can people offer or employers offer?

Caroline:  So I would say the first and most important is that the communication channels remain open and that we're . . . I have lovely sunshine coming in here. As I see the little sun is moving over, it's a good complaint.

So for me, one of the most important things about keeping the communication channels open is that each person involved has somebody that they can go to, to get an update, to ask questions, etc. It can be a very lonely place whether you are the complainant or the subject of the complaint when this kind of a process happens.

And oftentimes the manager says, "Well, look, I can't talk to any of you because I'm a witness or I'm involved". Therefore, the company should appoint two different people to act as a support person and to be available to answer any kind of key questions that they may have.

For a lot of people, this is a very emotional, stressful, upsetting time. Especially, for example, allegations of bullying, harassment, sexual harassment, gross misconduct, all things that could result in an investigation.

For a lot of people, it could be the first time it's ever happened, but also it is very stressful and upsetting. So it's really important that we have that go-to person for them that is there as a neutral, and answering questions, keeping the communication channels.

And the second thing for me is to remember the company still holds responsibility. So even if, for example, the company appoints me to do an investigation and then they say, "Well, look, Caroline's doing the investigation now", you are still responsible for the relationship between you and your employee, and also you are responsible for making sure that I do my job in a timely manner.

Many people would say, "Oh, look, I outsourced it to a consultancy and they took three months to do it". For me, the company needs to . . . you can't obviously influence the investigator in their work, but you can ensure that when you're appointing them, they are available. And equally, you're putting some element of timeliness around that.

There's reasonableness to that as well. By the time the correspondence goes out, the parties are invited, etc., it all takes a couple of weeks, but it shouldn't take months.

And I think that's important to remember the responsibility of the company isn't disowned on the basis they've passed it to somebody else. Whether that's within your company or external, it doesn't matter.

And the other thing for me, Julie, is that the investigator is competent. A lot of the time, I see people and they're appointed and they might be a retired person, which many are amazing investigators, but sometimes you might see a person appointed and they've never been trained. It's just that they're a retired senior person and they think they would be ideal to do an investigation, but they've never even heard of the rules of natural justice, not a mind all of the other nuances that are required.

That investigation report that's produced, that's the foundation for the outcome, for the appeal, and for anything else that may happen after that. So if the foundation of the investigation isn't done right, you are already starting with cracky, weak foundations.

In occasions, I've been involved where I've been the outcome manager and there have been so many flaws with the investigation that it actually isn't a process that stands up meeting the rules of natural justice or the terms of reference or any of the S.I. 146 requirements either.

So again, start with strong foundations and competent parties to give yourself the best chance of success. Let's be honest, in most organisations, investigations don't happen that often. They occur on an ad hoc basis, and when they do happen, it's just making sure people have the bandwidth to be able to do them professionally. It's key.

Julie:   Great. And just as you said about that investigation brief as well, I know you can draft in people that are in management roles, very specialist roles, I can think of IT off the top of my head, that you may need for certain types of misconduct. But obviously, then, they wouldn't maybe have all that HR knowledge behind them, and so they would need a lot of support or the investigation brief would need to be very strong to support them as much as possible.

Caroline:  Yeah, and usually, Julie, you might get the IT person to be a witness rather than the person who's managing the investigation if there's something specific that they need to contribute. So that's probably the best way to think about that.

Julie:   Right. I'm just trying to think of different organisations and different managers.

And what about resource-wise, Caroline, from WRC perspective? Would they look at the resources in the organisation? So you shouldn't have really the same managers involved through all stages. Somebody's asked here, "Can an HR manager act as a note-taker in an investigation and then later be involved in some other part of the process?" So you've talked already about separation of the process, but what happens if the organisation doesn't have a large team?

Caroline:  Yeah, I suppose I don't think it's a good idea for the HR person to be the note-taker. With the best will in the world, because they're a competent trained person, the investigator is likely to say, "Caroline, what do you think?" And all of a sudden, they're not just the note-taker. They're actually stepping into the role of investigator.

Instead, I think the HR manager might end up doing the investigation or an outsourced person within the organisation, or indeed another internal manager within the organisation from a different department could do it.

But remember, the investigation is the trickiest of all the three stages. So the investigation, the outcome, and the appeal, in terms of technical skill, knowledgeability, etc., the investigation is the one that is the trickiest. So I would get your most competent person.

In the example you've outlined, rather than the HR person being the note-taker, I would say they could be the investigator and that somebody else assists in the note-taking process.

You want your best person involved. However, sometimes that HR person needs to be advising, etc., so they can't because they're not involved.

So separation of process is key. It's one of the fundamentals of it. And just making sure from the outset you work out who the parties are that are going to be involved helps with that a lot.

Julie:   There's a question here. Is there anything we should do if someone has a medical certificate that deems them unfit for the investigation in relation to time limits?

Caroline:  So I suppose most medical certs . . . I would say when you send somebody to the company doctor, the company doctor would in most cases . . . obviously not all, and each case turns on its own facts. The person mightn't be fit to come back to work, but they're generally fit to do the investigation, because sometimes the reason they're out is the stress linked to the allegation, for example.

So I would say I wouldn't just take the person's medical cert on its own. I would send them to Occupational Health and I would specifically assess, "Are they fit to engage in the investigation?"

But if they're not fit to engage in the investigation, we must wait. And again, I would be checking in with the person on a regular basis to say, "Look, obviously we appreciate the fact you're out sick, but we'd like to see if you're fit now to engage in the investigation and keep the channels open". For a lot of the time, the reason the person is out sick is because this is hanging over them, and that's not going to go away until the matter is addressed.

Julie:   Great. Thank you. Next question then is about sexual harassment specifically. So if the respondent requests to cross-examine the claimant in a sexual harassment claim, what would you advise if the claimant refuses?

Caroline:  I think it's important that that's managed sensitively. However, people have the right to cross-examine. And for me, on occasions like that, I'll identify what the questions are maybe that the person wants to put to the person, and I might act as a conduit in relation to that. So I think thinking about that is really what makes a difference. Is that all right, Julie?

Julie:   Yes, that's great. And then what do you do in the case where you are allowing someone to bring a companion, and the employee says that they're available, but their union rep is saying that they're not available for weeks?

Caroline:  Yeah, they'll have to get an alternative. And that's reasonable. I mean, it doesn't have to be that specific union rep. They'll have to get somebody else. Again, there's generally more than one party involved and that fairness has to work both ways.

Julie:   And then if the potential outcome of an investigation is termination based on the seriousness of an allegation, do you not have to suspend?

Caroline:  The outcome is termination?

Julie:   Sorry. If the potential outcome of the investigation. So maybe you've made it clear to the person that this is a very serious allegation, and they're asking basically, "Do you have to suspend?"

Caroline:  Definitely not, because again, it's an allegation.

Julie:   I'm thinking maybe for cases like safeguarding in certain environments, certain sectors as well, that would certainly be something that . . .

Caroline:  Absolutely. Yeah. And again, the reasonableness comes into play. So, Julie, we've run out of time.

Julie:   I know. We haven't even answered our poll question yet, so we'll move on to that. Maria, if you could bring up . . . Thank you very much for answering all those questions for us, Caroline.

Caroline:  A pleasure, as always.

Julie:   It's not easy whenever you're doing them on the spot.

Caroline:  Not at all. Only delighted.

Julie:  So you'll be interested to see, then, that even though we have remote and hybrid working, your workplace investigations overall have largely stayed the same. I thought that there may actually be a little bit of a decrease. Fourteen per cent of you have found that, but 19% have actually found that they've increased. So what do you think about those results, Caroline?

Caroline:  Yeah, I'm not surprised, to be honest. I think we're dealing with, I suppose, the same types of allegations, the same types of scenarios. I think we're getting more proactive at doing dignity and respect training and things like that, which is nipping things in the bud and raising awareness. But we're still seeing an awful lot of those types of allegations ending up in investigations.

Julie:   Great. Thank you.

Maria, if I could ask you just to bring the next slide. So thank you very much, everybody, for your contributions today, all the questions. It does make it more interesting for myself and Caroline. Caroline always does a fantastic job in answering them, and that's why we're having her speak at several events for us, including our Annual Review later on.

But if you do want to get in contact with The HR Suite, you'll see that they have their details. I know that quite a few of you are connected with us on LinkedIn. And if you're not already, then why not? So please, again, look up The HR Suite or look up Legal-Island as well.

We're also going to have the recording available. We'll also have it available on podcast as well.

One of the themes that's come out of today is that workplace bullying is usually an issue which leads to investigation. And as Caroline said, it needs to be dealt with sensitively and in a timely way as well.

We have a special offer on . . . this is eLearning training for all of your employees to make them aware of really what bullying is, when they should approach someone about that, escalate it, and about how they need to ensure that their behaviour is not seen as bullying as well.

That programme has been informed by legal firm Ogier Leman. And again, they've had a lot of input in that to make sure that you have the latest and best information on that.

And then, Maria, I think we've got one more slide left. Again, Caroline mentioned about the importance of investigations and people being trained. So we actually have a training event in December, the 5th and 6th. It's done as two half-days so that the first day you get more of the theory, and you get a chance then to reflect on that and come back the next day with lots of practical scenarios.

Again, a bestselling course that we have. And what we'd like to do is we would love to see you there. If you need more information about that, you can go onto the Legal-Island website.

Caroline, I think that that's all that we have for today. Thank you very much, and thanks, everybody, too for listening.

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