Workplace misconduct investigations are a critical process in ensuring work-related allegations are addressed promptly and fairly, and in maintaining workplace integrity. Whether you are an employee subject of an investigation, a complainant, or an employer managing the investigation process, understanding the key steps involved is essential to protecting your rights and reputation.
The importance of workplace investigations
When allegations of misconduct arise, such as harassment, discrimination, fraud, or bullying, employers generally have a legal and ethical obligation to investigate. For employers, an impartial and procedurally compliant investigation helps mitigate risks of unfair dismissal claims, general protections breaches, or allegations of bias under workplace law. For employees, it provides an opportunity to address the allegations and clear their name.
Step 1: Deciding whether to investigate
The first step is assessing whether an investigation is necessary. Not all workplace conflicts require formal intervention; minor disputes may be resolved through mediation or informal discussions. However, more serious allegations, such as those involving workplace safety violations, discrimination, sexual harassment or criminal conduct, demand a formal investigation. Employers must evaluate the severity of the complaint and determine whether it breaches workplace policies or laws.
Step 2: Preparing for the investigation
Once the decision to proceed with an investigation is made, preparation is key. This involves appointing an independent investigator to ensure impartiality and fairness. The investigator should review relevant policies, employment contracts, and any prior complaints or incidents related to the issue. A clear plan should be developed outlining the scope of the investigation, the parties involved, and the evidence required. It’s also important to identify potential witnesses and schedule interviews in a way that minimises disruption while respecting confidentiality.
Step 3: Notifying all parties
All relevant parties must be informed about the investigation in writing. This includes providing the accused employee with detailed particulars of the allegation(s), including what they are accused of and when it allegedly occurred, to ensure procedural fairness. Witnesses should also be notified about their role in the process and assured that their information will remain confidential. Employers should prioritise privacy throughout this step to limit reputational harm and prevent retaliation against complainants or witnesses.
Step 4: Gathering evidence
Evidence collection is a cornerstone of any workplace investigation. This may include interviewing witnesses and reviewing emails, CCTV footage, time records and medical reports. To ensure fairness, respondents should be given an opportunity to address each allegation fully and provide supporting evidence or witnesses in their defence.
Step 5: Evaluating findings
Once all relevant evidence has been collected, the investigator must analyse it and determine what occurred based on the ‘balance of probabilities’ standard, applying the Briginshaw principle. Investigators must cross-check witness statements against documentary evidence while remaining objective and free from bias. Any inconsistencies in witness statements should be addressed and scrutinised through follow-up interviews if necessary.
Step 6: Communicating outcomes
After reaching a conclusion, employers must communicate the findings to all relevant parties in a clear and timely manner, setting out whether or not the allegation(s) were substantiated. This includes providing a written report detailing the investigation process, evidence reviewed, conclusions reached, and any recommended actions. Possible outcomes range from no further action, to disciplinary measures such as warnings, training requirements, or termination in cases of serious misconduct.
Safeguarding your rights as an employee under investigation
For employees under investigation, you have a right to procedural fairness. This means that:
- you must be informed of all allegations against you in detail.
- you must be given sufficient time to prepare your response, and sufficient opportunity to respond to the allegations.
- investigators must remain unbiased and impartial and base their findings solely on evidence presented during the process.
If you believe procedural fairness has been breached – for example, if you were not given adequate notice of the allegations, or you believe the investigator was biased – you may have grounds for appeal or legal recourse.
Fulfilling your obligations as an employer
Employers play a vital role in maintaining procedural fairness throughout workplace investigations. This includes appointing qualified investigators (internal or external), adhering to organisational policies and employment laws, and ensuring timely resolution of complaints to minimise disruption.
Workplace misconduct investigations can be challenging for all parties involved but are essential for upholding fairness and accountability within organisations.