How to conduct employee investigations

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Every business wants a body of employees that they can trust, rely on to undertake their employed role in a reliable and conscientious manner and have positive working relationships with. This is beneficial to the health and development of the company, customer experience and relations and the employees themselves. 

However, there are occasions where trust is breached or suspicions raised around the conduct of an employee and risk being posed to the business as a result of this. In this situation it can be necessary to undertake employee investigation to identify the source of any risk, clarify any issues of misconduct and obtain evidence to support further action addressing this.

This is never a positive or comfortable position to be in and risks the breakdown of management/staff relationships, damage being caused to the morale or work environment for all employees and can even lead to legal challenge being taken against the company if investigation or resulting action is perceived as discriminatory, harassing or unjustified.

It is important to apply caution when considering implementing employee investigation and be aware of any implications or consequences that may result from this.

The first step in any employee investigation is to determine whether it is really needed and why; unnecessary investigation wastes company time, money and resources and can have heavy penalties in terms of working relationships and the potential of grievance claims.

Is there sufficient evidence to undertake an investigation and is the source of this evidence reliable and trustworthy? What will be achieved through investigation, and will the potential outcomes be worthy of the expense and impact investigation incurs?

Is there another way to resolve the issue? Have other avenues such as an informal discussion with the employee concerned or preventative measures to put a stop to any further capacity for the worrying behaviour to continue been explored? These are questions that need to be asked before commencing the formal investigation procedure.

If you determine that investigation is necessary and appropriate and decide to proceed, it is essential to ensure that this is carried out in a fair, objective, unbiased and comprehensive manner or else you risk future grievance claims, tribunals or legal action.

Employers need to abide by the Acas Code when undertaking any form of disciplinary action and staff investigation falls within this category. You are going to need to gather clear and irrefutable evidence to be able to pursue further action following investigation and to justify this action against any challenge or claim. 

An important part of ensuring objective and indisputable investigation is ensuring the person or agency that will undertake this can be proven to be neutral, independent and unbiased in their approach and findings.

Any person working within the business itself could be perceived as having an interest or investment in achieving a particular outcome for the investigation and this won’t be helpful in case of future challenge or legal action. It can be prudent to employ the services of an outside or independent professional such as a private investigator who will be able to investigate from a position of objectivity.

Professional private investigation agencies are the experts in undertaking employee investigation; by commissioning their services not only can you be assured of a thorough and efficient investigation that results in robust and irrefutable evidence but also that they are fully trained within legal frameworks around employee investigations and that all work undertaken by them will be legally compliant and ethical, again minimising any risk of future legal action impacting negatively on the business. 

Once you have confirmed the need for employee investigation and identified the person or agency that will undertake this, a plan for the implementation of the investigation needs to be formulated. This can be achieved through discussion between the business and the investigator and needs to identify areas and persons of concern, the history around this and the outcomes that need to be achieved or evidence that needs to be provided as a result of the investigation.

Expectations of the investigation need to be clarified so that the business know what they will receive and the investigator knows what is required of them and this can include timescales for the investigation, how evidence needs to be presented and how the investigator will be able to gain access to records, information and the work environment itself.

Limits of the investigation need to be discussed such as the inability to place surveillance equipment in certain places or the records or files that the business do not consent to the investigator accessing. Having a clear plan in place can prevent delay to the investigation commencing and can avoid confusion or frustration at a later date if the expectations of the business and the investigator were not clarified and therefore not met.

There is a duty for the employer to make the employee aware that investigation is being conducted, unless it can be demonstrated that doing so would risk the employee from manipulating evidence and preventing fair and accurate investigation.

For example, in cases such as employees who are fraudulently claiming compensation for injury they allege occurred in the workplace or who are taking extended sick leave for illegitimate reasons and are perhaps working elsewhere to obtain secondary income during this time, it would be inappropriate to inform the employee of the investigation as they will simply be able to stop the activity that would provide evidence of this, and nothing would ever be proven.

It is important for the business and the investigator to be aware of any reasons that the employee is not to be informed of the investigation and that they have recorded these reasons and discussions and decision making around this to prevent later challenge.

It is essential that any employee investigation is undertaken in a respectful, confidential and discreet manner.

Other employees do not need to know that an individual is being investigated and even if the employee concerned has committed misconduct or even criminal activity, they have a right to have their personal information and circumstances kept confidential.

Awareness of an investigation may also make other employees uncomfortable and could damage company reputation and relations. A professional private investigation agency is well aware and used to the need for absolute discretion and will ensure that this is complied with in all areas of undertaking and recording within the investigation.

Once the investigation has been concluded and evidence submitted by the investigator, this needs to be reviewed and decisions need to be made about what steps to take next.

It may be that a conversation needs to be held with the employee around the findings of the corporate investigation to gain their views and explanation and see if the situation can be resolved without further, more formal action. Again, this would form part of disciplinary procedures and any such meeting would need to comply with Acas Code guidance.

If the investigation determines that criminal or fraudulent acts have been committed by the employee, the business can then report this directly to the police or to Action Fraud to undertake further investigation and action against the perpetrator.

If the only option following conclusion of the employee investigation is dismissal procedures explained in the Acas Code would need to be followed. Robust evidence provided by an objective and professional employee investigation will be invaluable in supporting this outcome and preventing future or ongoing harm to the business. 

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