Looking into workplace investigations, Part 3 – remembering the Three RsDavid Whincupon December 16, 2021 at 5:51 pm Employment Law Worldview


There will be few in HR who have not at some time been served with one of those employee grievances which says, paraphrasing only slightly, “I am really unhappy in my work.  I have recently discovered that I have been really unhappy for many years.  Clearly this cannot be my fault in any way, so it must be yours.  To prove that, I attach a twenty-page list of all the knocks and disappointments which I have been subjected to here over the last decade.  I await your resolution, though I am not going to tell you what I think that should be“.  Something in you just falls on its tiny face and dies – are you really going to have to investigate the whole lot?  When you are drawing up your map of what you need to know, can you take no short-cuts?

Acas guidance, not to mention good ER practice, requires that your investigation is conducted reasonably.  To help frame that, we can go back to the statutory purpose of a grievance procedure in section 3 ERA 1996 – to provide a mechanism by which an employee can “seek redress” for his complaint – in other words, to get something fixed or remedied.  By extension from there, a complaint which cannot reasonably be fixed or remedied is not a good subject for a grievance, and still less so for any extended investigation.  Perhaps the complaint relates to matters too long ago (ET limitation periods are not determinative here, but are certainly relevant) or impossible to investigate due to staff turnover or data deletion policies, or irrelevant to the main complaint, or simply so petty or trivial that they would not warrant a remedy even if true.  It cannot be outside that range of reasonable responses for the employer to limit its investigation to those parts of your employee’s litany of misery which are recent, relevant and resolvable, the grievance procedure’s 3 Rs.

But how to decide?  This is not solely about the employee’s ability to obtain a remedy through litigation.  Unacceptable behaviours remain unacceptable even if the employee sits on them for a while, and ultimately his desired outcome may not be money but just some acknowledgment that something could have been done better.  Against, that you are entitled to conclude that if the employee hasn’t felt strongly enough about something to mention it for many months or years, he cannot actually be too concerned about it.  Equally, if you can look at an allegation and reasonably say, well, so what?, then there is little benefit to anyone in your formally poking about in it.  Where what is done cannot reasonably be undone, the same is true – perhaps there have been poor communications with a manager in the past, but if they are now addressed going forwards, what is the benefit of a detailed review of the past?

If it is not your intention to look at every one of your employee’s list or to interview every person or review every document he refers to, it is good practice (not a legal requirement) to put that proposal to him in advance: “I am considering not looking at allegation A or B, documents C or D, your witnesses E and F because for X, Y and Z reasons, I do not think that will help in determining your grievance.  Please let me know what you think?”  You are not bound by the employee’s response, but it will strengthen your procedural position no end to be seen to consider it.

Keep in mind that your workplace investigation is not the pursuit of the whole truth for the truth’s sake, but pursuit of as much of it as you need to decide whether that redress in section 3 is required and what form it should take.  What do I need to know in order to fix what the employee can realistically be upset about? Therefore it is within your power as investigator, at least to some extent, to define the boundaries and parameters for your enquiries.

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