Three questions to better workplace investigations
How to scrutiny-proof your investigations for the long-haul?
For many line managers, a workplace investigation already feels like a risk-laden burden. The opportunity to ensure demonstrate excellent leadership behaviours gets lost in the fear of legal consequences and unclear process.
We know that pressure is about to intensify significantly with the changes to the qualifying period for unfair dismissal. We know that an additional 6.3 million employees are about to come within scope of protection, giving rise some 3000 additional ET claims each year. This can only mean extended waiting times for hearings, going up still further from the average of 31 weeks in 2025.
Employers' ER strategies for 2026 and beyond need to ensure that investigations have followed an objective, evidence-led framework. They also need to support logically sound decision-making that stands up to scrutiny long after memories have faded and witnesses have left.
If investigations are not robust, the delay in judicial process will create a greater risk that the investigation is attacked as unreasonable, and the whole disciplinary or grievance process unfair as a result/
Being fair and being seen to be fair has never been a more important part of the ER strategy to deter claimants from relying on the delay in the judicial process to 'take their chance' with a claim.
The three questions. What are they and why do they matter?
These three questions will break down an investigation into bite-sized chunks, but crucially they also ensure that all the reasonably available evidence is not only gathered, it's used for the right (logical) reasons.
When a manager is first briefed to conduct an investigation, ask them to ask themselves these three questions:
01
What does the evidence tell you actually happened?
The focus: Establish the facts. No assumptions, no-one's word is accepted unscrutinised, and no opportunity for an allegation of bias.
The practice: Investigators look solely at the tangible evidence and probe witness recollection. No more 'I can't remember' left unchallenged.
The benefit: Investigations are no longer clouded by opinions and assumptions. It also tightly defines the scope of the investigation, so there's no question that something's got missed, nor is there delay caused by 'scope creep'.
02
what does the evidence tell you should have happened?
The focus: Establish the rule, or benchmark against which what actually happened should be judged.
The practice: Investigators go back to the source (policy, KPI, organisational practice) and set the baseline against which the behaviour is to be judged.
The benefit: No subjective assessment (no more "well, it felt like bullying to me") and it unearths any 'rule drift' early on in the process: Allegations of bias, or double standards. will be a thing of the past.
03
What is the context for what happened?
The focus: Establish the 'why', plus any mitigating circumstances or aggravating factors.
The practice: Managers build into their plans questions that explicitly explore all the circumstances surrounding what happened.
The benefit: A proper root cause analysis of the issue, and an investigation that feels human-centric, not a 'prosecution'. There's clear evidence from the investigation that any subsequent disciplinary or grievance chair is a decision that's taken all the relevant circumstances into account - key to establishing a decision that's 'within the range of reasonable reasonable responses.
Why train managers using this technique?
The technique provides HR professionals with clean, factual findings. Managers focus purely on the evidence and context, whilst HR maintains its role as an objective advisor on process and law: Cases such as Ramphal v Department of Transport reinforced the importance of HR avoiding overstepping into the role of decision-maker, and this technique keeps the boundaries clean.
A structure to use as a coaching tool
The technique is also a good coaching tool to ensure consistency of approach at scale.
Post workshop reinforcement to keep the learning burning.
Investigation are not a manager's every day activity and we know that learning fades quickly unless it's reinforced. A crisp technique helps to keep the learning burning - here's our To Do video that will keep the technique front of mind:
How could this technique support your managers and manage your ER risks?
Get in touch to discuss how we could build a programme to upskill your managers to investigate with confidence and skill.
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