Facing a workplace investigation? You may want to read this first.

Workplace investigations may be initiated when management suspects a potential disciplinary issue, when you raise concerns about patient safety, or about the treatment of yourself or others. They may also arise from concerns regarding events or decisions.

Research, including the Investigating the Investigators report, shows that workplace investigations are often unnecessary, frequently poorly conducted, and that the investigation itself may be used as a form of punishment, causing harm to you and others.  They can damage the reputation of the organisation as well as your own reputation, health and career.

The suggestions below should be acted on as soon as you think an investigation is being considered, rather than waiting to see if one will start. Remember, the focus should always be on what you and the organisation can learn.

1.   If you are invited to a meeting where you believe you might be told you are to be investigated,

• Immediately clarify in writing the purpose of the meeting, and who will be present, and

• State (and confirm in writing) that you want to be accompanied at this meeting by someone you trust – a union rep or trusted colleague. If HR are to be present, you should certainly insist on being accompanied.

2.   At the meeting, and in writing afterwards, you should seek clarification on whether the issue to be investigated can be resolved informally using Just and Learning Culture principles. Informal resolution may not always be appropriate (especially where discrimination may be a factor) but if a formal investigation is planned, then you should ask in writing why, what precisely is being investigated, who by, and when it might start.

3.   Immediately after the meeting, submit a Subject Access Request (SAR) for a full copy of your personnel file. You are entitled to obtain it, and it must be provided within one month of your request. The Information Commissioner Office https://ico.org.uk/ may be helpful. At a later stage there may be other information you should obtain – for example copies of emails and other discussions about your situation that may shine a light on what led up to an investigation. Again, check the ICO web site.

4.   You should also ask for copies of the policies under which the investigation is to be conducted. If you are a doctor, the MHPS process will be applicable. Make sure the appropriate policies are referred in it.

5.   If there is any suggestion that you will be suspended, moved, or placed on restricted duties, you should ask in writing for the reasons for this and the practical implications for you. Employment Tribunals have become increasingly critical of the overuse of suspension; be prepared to challenge it through your union. You may be asked not discuss the case with work colleagues, but you will need to obtain witnesses, and you should not be prevented from normal engagement with colleagues and friends at work. Background information here. https://www.rogerkline.co.uk/post/the-courts-are-clear-suspension-at-work-is-often-not-a-neutral-act

6.   You should contact your union immediately if you haven’t already. If you are not in a union, you should take advice from someone you trust who can advise you, which may be a Freedom to Speak Up Guardian, a senior member of a staff network, a senior manager you trust, or a lawyer. You may be invited to an informal discussion with HR. That is fine as long as you can take notes, and it is not the start of the investigation.

7.   Start collating any of the following information that may conceivably be relevant. Print it off and transfer it to a separate file that won’t be lost if you lose access to your work computer. Do not transfer any documents electronically that might reasonably be regarded as confidential information.

• Meeting notes that may be relevant, including copies of any relevant Teams or Zoom videos

• Relevant emails you have sent or received

• Any Datixes you have lodged

• Texts or WhatsApp messages that may be relevant

• Notes of relevant phone calls

• Policies and reports that might be relevant, including workforce reports, Freedom to Speak Up reports, WRES, WDES and service reports,

• Print your electronic diary for the last couple of years and keep any notebooks in a safe place

8.   Start thinking about who you might call as reliable witnesses to support your case. Do not attend any meetings without being accompanied or represented and ensure that all future meetings are followed up with an email from you to confirm what was discussed, any actions arising, and any questions you want to ask.

9.   Do not agree to any decisions about what is to be investigated (Terms of Reference), how it is to be investigated, or who will investigate without taking advice.

10. If you are in a union (which I strongly recommend), do not hesitate to escalate if the advice or representation does not feel adequate. However, local representatives and full-time officials may be busy and may need to seek advice themselves. This may be especially the case if your investigation involves a protected disclosure (whistleblowing) or discrimination, in which case specialist advice should be sought. If the union response is too slow (with an eye on Tribunal deadlines or investigation start dates) or inadequate (failure to grasp issues around whistleblowing or discrimination or bullying) you may need to escalate to a senior official. Beware delays in the process which risk missing the deadline for lodging an Employment Tribunal

11. Start organising your thoughts by setting out everything you can think of on a three-column sheet, with (1) dates, (2) any issues that might be relevant, and (3) the evidence available to support them (or not). This will be invaluable in organising your thoughts.

12. Look after yourself. Whether you have raised a concern or a concern has been raised about you, an investigation can be traumatic. Discuss with your family, friends, and your representative what support you need. Find out what your employer’s disciplinary or whistleblowing policy says about your welfare. Don’t hesitate to see your GP and Occupational Health for advice.

Please note. I am NOT a lawyer so this advice does not constitute legal advice. Also I do not represent any more.