In the latest episode of our Expert HR series, Natural HR was joined by Kate Marston, Director of Mast People Support, to discuss everything to do with HR Investigations, Grievances, and Disciplinaries and, most importantly, how businesses and HR teams can reduce the risks posed by them.
Please note, this is a review of the items discussed during the webinar. You can view the full video recording of the webinar on our website here.
All items and discussions covered in this represent the webinar and don’t represent the views of Natural HR. Natural HR are not solicitors or qualified legal experts, and any advice in this blog should not be taken as so. We recommend speaking to ACAS or a trained legal professional if you need support on HR investigations, grievances, and disciplinaries.
Mast People Support was started by former Metropolitan Police Detective Sergeant Kate Marston and conducts investigations, be that criminal or other, and will hear grievances or appeals on behalf of organisations. The company also offers training on areas including conducting investigations, audits or reviews on processes and cases in the investigation sphere.
In this webinar, the following topics were covered:
- Potential risks of investigations, disciplinaries and grievances and the impacts they can have on organisations.
- How a proactive HR can reduce risks.
- The approach to take in investigations.
- And why opinions do not matter.
Why doing investigations correctly is so important
Kate began by talking about the key risks that a compromised investigation can have, saying that an investigation that goes wrong could expose your business to financial losses or litigation, whether that’s criminal or civil.
But there was also the discussion of the impacts an investigation can have on the wider team, such as productivity. If you start to lose people, whether that’s the people involved in the investigation, because you have either dismissed somebody, they’re not happy with the outcome, or there are wider issues around the investigation, you’re going to start losing people from your organisation. As a result, you’re going to need to rehire and retrain people, which costs time and money.
The other risk that is a key factor for most organisations is the reputational damage that can occur.
Proactive HR = Reduced Risks
Kate moved on to talk about how if you have strong investigation type policies – including your grievance and disciplinary policies as well as your businesses as usual company-wide policy and processes, you’re going to reduce your risks because you’re going to reduce the chance of someone being treated unfairly, thus giving rise to a claim.
So, ask yourself this. When was the last time you reviewed your investigation, disciplinary grievance policy and processes? Do your teams understand these policies? Do your processes need updating, or do your teams require further training? She suggested there should not be a gap between policy and process versus your reality in a nutshell.
Kate also touched on how your investigators gather information and evidence from the broader business while reviewing your briefing processes and having templates.
Kate then moved on to talk about the culture within the workplace, asking viewers if they have a culture where people are comfortable speaking up. She explained that the earlier people feel they can speak up, the earlier they can address an issue.
If people don’t feel comfortable speaking up, you don’t know what is happening within your organisation, and as HR professionals, you can’t do your job. A common issue that Kate encounters is that often managers are rarely equipped to manage effectively, and therefore even the smallest issues can quickly begin to snowball.
In terms of training, Kate pointed out that you shouldn’t assume that your investigators know how you want investigations to be carried out and what your standard is, and because of that, you must make sure that you’ve trained them.
Her first tip was to make sure your investigators experience a Tribunal by going to watch one or reading about them.
Kate went on to talk about how it goes without saying that whoever is investigating the case should have no personal involvement with the people concerned or the events that are being investigated, but they also shouldn’t be responsible for deciding the outcome of the disciplinary or any appeals.
She suggested you need to look at your investigator’s experience and how they make decisions because there’s a lot of input you can give to make sure they are the right person. You want someone who understands that they’re not looking for the ‘guilty or not guilty’ answer. They’re simply looking to gather all the facts.
She then spoke about fair and consistent investigations – looking at setting terms of reference, how far to investigate – basically doing what is reasonable, looking at the communication set up and ensuring policy was followed. She also spoke about the unfortunate but common scenario when the “star player” is breaching policies and the impact this has on the wider team morale.
Beyond looking at your investigation-based policy, Kate spoke about whether companies have a broader business policy or company handbooks which state things like “All incidents of X” must be investigated?
For example, she gave times when she has seen grievance policies stating that the company will get back to you in 48 hours from the point of the person making the complaint. But that’s not always feasible with an investigation.
If you’ve got 15 people that you need to speak to regarding the investigation, you are likely to be at a stage where you’re not going to be able to go back to them in those 48 hours. But what you can do, which is essential, is make sure you communicate around that and document why any delays are happening.
Why opinion does not matter
Kate mentioned that your investigators should be looking at gathering the facts, not their interpretation of the facts, which is why opinion doesn’t matter, because it really, really can cloud the investigator’s judgement and the path that the investigation takes.
Kate spoke about two common traps she sees. The first is the storyteller – the investigator who likes to wax lyrical about what they think has happened rather than gathering the evidence. For example, she talked about a case where a “A” alleged that they had been sexually harassed in the workplace by “B”.
The investigator that got that case immediately stated, before doing anything on the case, they knew what must have happened. “A” must have been flirting with “B” and lead him on somewhat, and “2B” has now taken it too far. Now, that is not the person you want investigating that matter because they’ve created their own story around it. How can you trust that they have an open mind?
The second trap Kate went on to talk about was the ‘are they telling the truth’ question. Something that often happens when you come out of an investigation meeting with often senior people asking you if the person you spoke to was telling the truth or lying. The truth is that it doesn’t matter what the investigator thinks – The investigator won’t have the baseline of how that person reacts under stress in any case, so they’re not going to be able to tell you. What is important is what the person said, and if can they back up, and what can they disprove!
Kate Marston’s answers to your questions
Question: What evidence and paperwork should be shared with each party following an investigation?
Answer: It’s going to be slightly different for each investigation. But generally, anything that you’re relying on using to make your decision should be shared with anyone involved in the process, for instance, with the person being disciplined so that they get a chance to talk about it.
In terms of witnesses, if they make a request, you need to assess it and then decide whether they are entitled to that. However, at this point, I would recommend you speak to your lawyers because some things may be covered by the investigation or by privilege.
But generally, if you’re relying on information to make your decision, you would share that information with the party involved in the grievance or the disciplinary.
Question: Can you go and watch a tribunal?
Answer: Because of COVID, it may have changed, but in normal times it’s very similar to criminal courts, in that people can go and watch them.
I would recommend that you go and look at your local tribunal and look to see what viewing rules they have in place as a result of COVID. Outside of sitting in on cases, if you hear about a case in the press, Google it to review the judgement yourself.
Question: If an interviewed witness doesn’t want to be identified as the subject of an investigation, any information that has been given be fairly used as part of an investigation and, would we be able to share any information provided with the subject?
Answer: It’s tricky, and in general, is all dependent on the circumstances, but this is where I always encourage my investigators to parallel source things. Ask yourself, is there a way of parallel sourcing that information through other evidence at all? That’s a really important thing to do, and many people don’t do it.
If someone isn’t willing to come forward and give you that as evidence, you have some difficulties because then it’s all about how you then deal with that and how you then approach the issue.
Question: How do you deal with internal pressure from senior management to control the outcome of the investigation, such as attempts to protect the ‘star player’ or a senior manager?
Answer: As investigators, your role is not in the decision-making because your role is to present the facts. Any decisions that get made will have to be justified by those decision-makers. I know it can feel like a hard situation, but if you’ve got allegations, you have to present the investigation, and then the decisions have to be made. That’s the process. Those making those decisions are the ones that have to justify them, and it is them that have to accept that they’re exposing the business to risk, and it’s not you that’s making that decision. That’s those decision-makers. You’re just presenting the facts.
Question: I’ve spoken to people who used polygraph tests for employee interviews in investigations. What’s your view on using such a technique?
Answer: They don’t get used from a criminal perspective here in the U.K as far as I know, and it’s like anything. There are pros and cons; you need the baselines. I wouldn’t necessarily recommend it because they’re not 100 per cent, plus what benefit does it give? What does all the other evidence show you? What can you prove and disprove – that is the most important thing, not whether you think someone’s a liar or not.
Ask yourself, do you have the evidence to prove what’s happened or not? That’s what it comes down to, and I think that’s quite hard sometimes for people to get their heads around. If you’re in a tribunal and you have to show what’s happened, that’s what you must concentrate on, not whether that person is a liar, because ultimately, it’s what you can prove.