Conducting workplace investigations remotely

As we are all in midst of this Covid-19 world, we are clearly some way away from ‘business as usual’. The vast majority of employers are grappling with new ways of working, with many of their employees working from home or in other unusual ways. But it is clear that ‘business as usual’ issues can and do still arise. So, what should an employer do if it becomes aware of an allegation of misconduct or wrongdoing? In this article, we look at whether a remote investigation is the right step to take, and what to bear in mind if you conclude it is.

1. Decide if a remote investigation would be appropriate given the present circumstances

Is the issue or reported incident serious enough to warrant an investigation without delay? Considering the social distancing measures currently in place, employers need to ask: is it practicable to conduct investigation meetings remotely and to collect any relevant evidence? Would delaying an investigation risk rendering the process unfair?

If the answer to either of the above is ‘yes’, the employer should consider conducting an investigation remotely. The ACAS code requires that workplace investigations should be conducted without unreasonable delay. Unnecessary delays may affect the completeness and reliability of evidence collected and affect the overall fairness of the process. It is currently unclear how long the COVID-19 restrictions are likely to last. It may, therefore, prove necessary to conduct investigations remotely where the matter in question is sufficiently serious, even if that investigation may be more challenging that would ordinarily be the case.

2. Who should investigate?

You will need to appoint an appropriate investigating officer. That person needs to have the following essential characteristics: a) impartiality, b) an understanding of what a fair investigation requires, and c) sufficient time to dedicate to the process. Quite often, a previously uninvolved member of the HR team will be tasked with conducting the investigation. It is generally best to keep the roles of investigator and ultimate decision maker (should a disciplinary or grievance hearing be needed) separate.

Where there is no one in the business who meets the requirements set out above, or where the issues involved are particularly complex or involve a very senior employee, employers might turn to specialist legally trained investigators or experienced HR Consultants to conduct the investigation.

3. Keep the investigation confidential

Firstly, limit who knows about the allegations and the investigation. It is easy for an individual to complain that the process was not fair if information is being spread without good reason.

Once the investigation is underway, you should ensure that details of the investigation remain confidential. This may be particularly challenging where the fact-finding exercise is conducted remotely.

When sharing data and evidence by email or through other online tools, ensure that all the platforms and systems are secure and can be accessed only by the relevant parties involved in the investigation. It is also essential to keep all the relevant evidence in a secure format, with built-in protection preventing unauthorised distribution or access.

Parties involved in the investigation should only have access to information that is specifically relevant to them. For example, one witness should not be able to access other witness’s statement online; this should only be visible to the investigator. Pay extra attention to the files and locations of online correspondence, emails and other relevant evidence. Limit access to these files and locations where only relevant parties can review these. You may want to consider the use of a secure extranet site, where available.

You may also need to collate and review physical evidence or documentation in a hard-copy format. Consider ways in which this evidence can be accessed by the investigator without breaching government-mandated restrictions and social distancing measures. You must also ensure that any hardcopy evidence is securely stored and cannot be destroyed or shared with third parties.

Pay extra attention to ensure security and confidentiality of any personal data and comply with applicable requirements under the existing data protection legislation. You should have procedures in place on how to handle confidential information whilst conducting a remote investigation and preventative measures in the event of a breach. If the investigator needs to collect hard copy documents, they will need to make sure these documents are stored in a safe location. This is particularly relevant as they are likely to conduct the investigation from home, which may be shared with family members or flatmates.

4. Identify relevant evidence and witnesses

To carry out a fair disciplinary procedure, you must conduct a reasonable investigation. It is not necessary to investigate all aspects and details of the matter. You must ensure that all the evidence and documents collated by the investigator are strictly relevant to the matter at hand. This is especially important when the investigation is carried remotely. It may be particularly difficult to review a large of volume of evidence.

Similarly, keep the number of witnesses as low as is reasonably possible as it will be challenging to interview everyone remotely. If accounts of those interviewed are consistent and there are no good reasons to believe that other witnesses might have further information, it is not necessary to interview additional witnesses. By involving more witnesses than necessary, you may also lose control of information being disseminated to third parties, compromising the confidentiality of the process.

If any of the witnesses are currently on furlough leave, you should seek advice about the best way to involve them in the process within the rules of the scheme.

5. Ensure that interviews are conducted fairly and kept private and confidential

You must ensure that all the virtual meetings are held in private and are kept confidential.

You are under no obligation to allow the employee to be accompanied at an investigation meeting, but you may want to consider this in some circumstances. Check the wording of your disciplinary and grievance procedures to ensure your approach is in line with them.

In practice, it will be difficult for you to ensure nobody else is present in the room whilst holding the meeting remotely (especially if this is conducted as a phone call rather than as a videoconference). Therefore, it might be appropriate to allow a friend or family member to accompany the interviewee when they participate in an investigation meeting, if this is reasonable in the circumstances. This approach will, at least, enable the investigator to explain the importance of confidentiality to all participants.

In addition, pay extra attention to the following:

Ensure that only relevant parties receive an invitation to the virtual meeting (so that a third party does not accidentally join the meeting too). Make sure you use a password for the meeting.
Ensure that the line or online portal for hosting the meeting is secure and compliant for data protection purposes.
Ask the person being interviewed or parties attending the virtual meeting to call from a private and quiet room where they will not be disturbed. This may be challenging given the current lockdown circumstances as they may be at home with the family or other household members. Explain that the interviewee should attend the meeting alone, unless they have had prior permission to be accompanied.
Where possible, ensure that all parties join via a video call so that you can see their facial expressions and body language.
Ask parties to speak clearly, let them ask questions when necessary and confirm their understanding.
Ask parties attending the virtual meeting to mute themselves when they are not speaking to avoid any distractions.
Make use of online tools, such as screen sharing, to refer to certain documents. You may send documents by email in advance of the meeting, but there is a risk these might be shared with third parties without your authorisation.
Dress appropriately and maintain professional appearance and background to preserve the formality of the interview.

6. Minimise the risk of covert recording of investigation meetings

Neither an employee nor an employer has the right to record an investigation meeting, unless both parties have agreed to the recording. It is highly unlikely that your disciplinary and grievance procedures would expressly allow the recording of meetings. Check the wording of your policies and procedures for any provisions to such effect.

There is a higher risk of the employee covertly recording the meeting when it is conducted remotely. This may be relatively easier using own devices and other online devices.

To minimise the risk of covert recordings, you may take the following actions:

At the start of the interview, ask the interviewee to confirm they (or any companion) are not recording the meeting.
Remind them that they do not have a legal right to record the meeting. Explain that recording is generally not allowed unless expressly agreed by the parties. Highlight that it is also not permitted under your relevant policies and procedures.
Remind them that a covert recording may be viewed as a breach of trust and confidence as well as a misconduct matter warranting a disciplinary action. Explain that covert recording may also be in breach of existing data protection legislation.
Explain that you will be taking notes of the meeting and will share a copy of the minutes/notes with them. Remind them that they may also take their own notes during the meeting.

If an employee has a physical or mental impairment that would make taking their own notes difficult or impossible and they do not have a companion who may take notes on their behalf, you may decide to allow them to record the meeting. This may be a reasonable adjustment if there is no other alternative.

You should keep in mind that evidence gathered secretly by the employee through covert recording of the meeting could potentially be admitted by an Employment Tribunal in certain circumstances if deemed relevant. Therefore, you should always assume that you are being recorded and what you say will be admissible in an Employment Tribunal.

7. Be mindful of the health and well-being of those involved

An investigation is usually stressful for all parties involved. It is likely to be even more challenging and stressful in the present circumstances. Parties involved are already likely to be significantly impacted by the challenges of working remotely and uncertainty of the current situation. Any investigation is likely to add to this stress and negatively impact the mental health of the people involved. Therefore, it is essential that investigations are conducted fairly in recognition of how present conditions impact employees.

You should be flexible to accommodate interviewee’s schedule and personal responsibilities. Check with the interviewee whether the need to take a break in the same way as you would during an in-person meeting, but you may wish to ask them not to speak to anyone about their interview during such breaks.

Ensure that parties are supported appropriately and there are regular catch-ups to check on the employees’ well-being. You may also guide employees to professional medical help or to other sources of support (for example, an employee assistance programme).

How we can help

Our employment team can advise you on any remote investigations that you need to conduct during the lockdown period. In addition, our Investigations team are experienced in conducting remote investigations and are available to assist you should the need arise.

If you require further information about, please contact Karen Baxter, Lucy Lewis, or your usual contact.