Legally speaking, nothing in law exists explaining how to conduct a fair investigation. The notion of 'fairness' largely relies on prescient set through employment tribunal rulings and Acas guidance. But this is not prescriptive. The truth is investigatory proceedings are a craft and a process that requires mastery. The essential touchstones of a good Investigating Officer (IO) are as follows.
- Communication skills
- Critical thinking
- Report writing skills
- Understanding of Employment Law
Every case begins with an allegation. I find it helpful to think of the IO as a detective. Observant. Tenacious. Patient. Evidence is rarely without contention or contradiction, particularly with witness testimony. An investigation is to weigh the balance of probabilities an incident is more or less likely, to have occurred. The IO reaches conclusions and informs recommendations according to evidence and policies.
There are three gradients to apply when fact-finding. These are as follows.
- Contested: information in doubt
- Uncontested: undisputed facts
- Unsubstantiated: inconclusive or unsubstantiated
Gathering evidence is achieved mainly through communication. Many believe they have good communication skills, but talking is not the same as communicating. It is vital to understand the difference because answer quality correlates with questioning quality. Many types of questions could be used when interviewing for fact-finding purposes.
- Clarifying/Paraphrasing: to gain further details
- Feeling: to reveal beliefs - use sparingly
- Funnel: to whittle answers to a specific point
- Hypothetical/Inventive: to stimulate thinking
- Leading: to encourage a particular answer - unethical
- Loaded: to illicit a response - use cautiously
- Open-Ended/Elicitation: to encourage a free-form answer
- Polar: to focus discussion with yes/no responses
- Probing/Elaboration: to test the strength of an account
- Process/Heuristic: to test depths of knowledge
- Recall: to test remembrance
- Rhetorical/Reflective: unanswerable - use cautiously
Likewise, many types of answers can be given. They should be understood to inform where to guide the interview.
- Avoidance: misdirection, intended to draw attention away
- Contextual: the response given is irrelevant to the question
- Direct/Honest: the preferable response
- Distortion: informed by bias or unconscious perception of norms
- Lie: deduced from the plausibility of response or lack thereof
- Partial: selective response to aspects of the question
- Refusal: disengagement from the question
- Stalling: answering the question with another question
When writing the final report, it is essential to remember the IO is suggesting the outcome of a disciplinary hearing. The report should systemically document why one of three recommendations is made in closing: formal action, no action, or informal action. The IO should never have involvement with a disciplinary hearing; the disciplinary process must be compartmentalised.
A typical investigation report is structured as follows.
- Overview: who authorised the investigation, who conducted the investigation, what are the circumstances, what is the allegation, terms of reference
- Process: detail methodology used, what evidence was gathered, evidence not gathered, identification of witnesses, the relevance of each witness, why a witness was not interviewed, why a witness statement is anonymised
- Findings: summarise documentation, summarise key evidence from witness statements, the facts, mitigating factors, and other relevant information
- Conclusion: give recommendations based on all the evidence and other related recommendations
Finally, the disciplinary chair must issue copies of all supporting documents, including policy citations and witness statements. Witness statements should be signed and dated by the respective witness.