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Damian Warbuton: It's got to be perfect - hasn't it?

Wednesday 24 February 2016

Acas Senior Adviser Damian Warbuton explains the ins and outs of carrying out effective workplace investigations, it isn't quite as easy as A,B,C but that is a good place to start.

Damian Warburton

Damian Warburton joined Acas in 1996, after a career in various Central Government departments up and down the country. He initially worked as an individual conciliator settling claims across the full range of Employment Tribunal jurisdictions before moving on to advisory work in 2003.

Since then he has worked with a range of public and private sector organisations across the North West, working with both staff and management to provide advice, training and support to improve employment relations and business performance.

Damian Warburton

With apologies to late 80s' pop group Fairground Attraction (look them up, it's a good song), it doesn't have to be 'perfect'. What I'm talking about is workplace investigations. It's something I get asked about a lot as an Acas adviser and I am always happy to burst some of those employment myths. Here's my 'a, b, c' of doing a 'reasonable' investigation.

A. Carry out an investigation every time you need to look into something that's happened at work. This applies even if the member of staff concerned admits to whatever it is they've been accused of.

"Why would you need to investigate when they've admitted it?" I hear you ask. Well there are two good reasons why you should. Firstly it's only fair - if you were facing an accusation of poor behaviour or poor performance at work you'd want your employer to look carefully at the relevant facts before deciding what to do. If you're an employer, it's got to be right that you want the same for your staff. Secondly, if the matter could end up in front of an Employment Tribunal, you'll almost certainly be asked whether or not you've investigated the issue - if your answer is "no" then there's every chance you'll lose the case.

B. But there is no need to go overboard. You don't necessarily have to devote a huge amount of resource to investigate every possible angle. The correct legal standard is the balance of probabilities - is it more likely than not? - and you should be looking to meet what's known as the Burchell test [British Home Stores -v- Burchell [1978] IRLR 379 (also reported at [1980] ICR 303)]. This threefold test requires you to have:

  • a reasonable belief in the employee's "guilt"
  • reasonable grounds for holding that belief and
  • investigated as much as was reasonable in all the circumstances of the case.

If somebody's admitted doing something then your investigation might be as simple as asking them why they did it, checking out their explanation or any mitigating factors and asking whether there's anything else you should know.

C. There are exceptions when more digging will be needed. If there is a denial or if the facts are in dispute then you'll have to work a bit harder and if the allegations are potentially criminal in nature then you'll have to work harder still [Miller v William Hill Organisation Ltd EAT/0336/12] to satisfy a Tribunal that you've done enough.

So, ask yourself: have I done a reasonable investigation in the circumstances of this particular case? Just because more could have been done doesn't mean that your investigation isn't good enough. [Shrestha v Genesis Housing Association Ltd [2015] IRLR 399 CA] There's no excuse for not investigating properly but don't think you've got to go all CSI before you've done enough.

If you want to know more about how to get it right take a look at our Carrying out investigations in the workplace guide.

1 Comment

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  • Posted by Natalie Kirby  |  5 March 2017, 1:43PM

    I have been accussed or two transactions amounting to £!30 being transfered into my personal account from my employers A C Rawlins Wigmore Veterinary Centre My purse had been stolen, I cannot actually pinpoint the date but had reported it to my building society and that is when i foung out money had gone into my account I contacted my employers on the same day and the next day whilst at work i paid the amount straight back I have been sacked and am in the process of an appeal

    Please can you assist me as to my rights