The outbreak of COVID-19 has led to changes in the way we live and work, and one area in which companies particularly need to adapt is virtual disciplinary and grievance investigations. Conducting an investigation during this time of lockdown poses practical challenges when it comes to interacting with employees, gathering and reviewing data and conducting investigation meetings.
Although companies may be inclined to postpone disciplinary and grievance investigations until there is a return to normality, the uncertainty of when this will be means that it may be in the best interests of both employers and employees to carry out virtual investigations. It is also becoming increasingly clear that when we do return to the physical office there could be a ‘new normal’, for example where home working is the preferred choice, and in any case a return is likely to be phased. This means that employers need to get to grips with how to conduct a disciplinary and grievance investigation remotely. Employers may be concerned that a long delay in investigating any suspected misconduct or breach may be viewed as an acceptance of such conduct and thus make any subsequent disciplinary action more challenging, as well as having a negative cultural impact at a time when a robust corporate culture is increasingly important. It is also worth remembering that any unreasonable delay in carrying out a grievance or disciplinary investigation could breach the ACAS Code of Practice, risking a 25 per cent. increase of any subsequent award ordered in Employment Tribunal proceedings.
The usual rules for procedural fairness will apply to a virtual investigation in the same way as a 'normal' investigation, such as giving adequate notice of a hearing, keeping employees informed of developments and the right to appeal. However, there are further requirements that companies need to consider when carrying out an investigation remotely.
Below are some tips on the best practices we recommend for running a smooth virtual investigation.
1. Preparation and support
When undertaking a disciplinary or grievance investigation remotely, companies should consider the circumstances that the employees involved in the investigation are facing. The demands that come with working from home for employees may differ depending on their circumstances, and a flexible approach should be taken to ensure appropriate steps are taken from the outset.
Companies should offer appropriate support for employees involved in the investigation, particularly if they are vulnerable or have any conditions or personal circumstances which may make working from home more of a challenge (and therefore increase the level of stress that an employee may already be under, before the additional pressure of an investigation is added in to the mix). There should be a designated HR contact who can share appropriate resources with the employee, such as links to mental health support, and these should be available for the employee to access from home. This may help to mitigate the risk of a claim from an involved employee that no support was provided (which could be a breach of implied employer duties and give rise, for example, to the risk of personal injury claims if the employee suffers damage to their health).
ACAS, in guidance issued on 6 May 2020, has emphasised that, in the context of disciplinary and grievance procedures, employers should give careful consideration to the health and wellbeing of employees when deciding whether and how to proceed at this time.
2. Gathering evidence
Obtaining physical materials (e.g. hard copy notes of meetings) for an investigation might be difficult, as these materials may be contained in the office which cannot be accessed under the current restrictions. There are likely to be challenges faced in recovering physical work devices, such as computers or phones, due to distancing measures and employees working from home (and if such devices are recovered, consideration should be given to providing an appropriate replacement if there is an expectation that the employee will continue to work). In the most serious cases, employers often wish to seize devices without advance warning, in order to avoid irretrievable deletion or destruction of relevant material. The element of surprise is clearly harder to achieve in circumstances where the employee is not physically present in the office, and if the employer does wish to implement some sort of ‘dawn raid’ arrangement, care must be taken to ensure that the employee’s human rights are not breached (and, more practically, that social distancing rules continue to be observed).
In light of these logistical challenges it may be that the only materials that can be used are those held remotely (e.g. data that has been stored on the cloud or on the server). It is important to identify as soon as possible which materials will be required and to seek advice from IT on how these materials can be accessed and if it is possible to recover any additional data remotely from work devices (e.g. Whatsapp conversations).
Where relevant hard copy documents are held at home, it is important that companies issue document preservation notices as soon as possible so that documents are not destroyed. However, as in any investigation, a balance should be struck against the risk of 'tipping off' individuals who are (or may be) subject to the investigation.
Companies need to have sufficient leverage in their policies to obtain access to digital devices, and this will be more important than ever if significant home working becomes the norm. Now might be a good time for a company to review and update its policies to ensure that it possesses the necessary powers to obtain data when employees are not physically in the office. For instance, it may be beneficial to update device policies to require the co-operation of employees to provide data that is stored on a device that cannot be remotely accessed.
3. The investigation meeting
Procedural requirements should still be followed in virtual investigation meetings.
During an investigation interview, an employee does not have a statutory right to be accompanied, although an employer may wish to consider whether the circumstances make this appropriate (e.g. if it considers that the employee requires additional support or, in exceptional cases, legal advice). If the employee will be permitted to bring a companion, the employer should request details about any accompanying individual in advance in order to share the calendar invite of the virtual interview.
Witness interviews should ideally be conducted by video using a reliable platform, and the videoconferencing software used must be accessible and secure. Conducting meetings in this way allows the interviewer to gain a better rapport with the interviewee and gives the opportunity to be able to read the interviewee’s reactions to certain questions. Additionally, companies should aim to do the following to ensure a smooth interview:
- If possible, test the software with participants in advance to make sure they can use the software from home without issues.
- Ensure that the interviewee understands the process, and remind them that they should be attending the interview alone (assuming that any person accompanying them is doing so virtually) and that there should be no-one else present in the room. If the interviewee does bring a companion the company should explain how the companion and the interviewee can talk privately during the meeting.
- A notetaker should attend the meeting to create a record.
- Consider before the interview how representatives from the company will communicate with each other during the interview. If this is done via Whatsapp (or similar chat option), make sure that copies of these conversations are created. Care should also be taken to ensure that the approach taken by the interviewers does not inadvertently breach the company’s IT policy – e.g. if Whatsapp messaging for work purposes is forbidden.
- Consider how documents will be provided to interviewees. It may be preferable to provide these in advance via email depending on the number and length of documents. Additionally documents could be shared during the interview where the software allows for screen sharing.
ACAS, in its 6 May 2020 guidance, has also stated that in the context of disciplinary and grievance meetings, the employer should consider if video meetings can be conducted in a fair way, including considering whether any reasonable adjustments may be required if any participants have any disability or other accessibility issues that might affect their ability to use video technology. This consideration will apply equally to investigation meetings.
The specific requirements of each investigation will differ depending on the circumstances. However, if companies can adapt their approach and carefully plan ahead, it is possible to still conduct an effective interview process and a thorough investigation remotely.