Workplace investigations – the importance of being discreet

Can you keep a secret? If you’re ever involved in a workplace investigation, you’ll need to.

In a previous post, Conducting Workplace Investigations – an overview, we ran through the basic ingredients of how to carry out a fair and efficient investigation into allegations of wrongdoing or other workplace grievances. This post is to place some emphasis on the element of confidentiality which, as far as ACAS is concerned, is central to the whole investigatory process:

“In a confidential investigation it is important to explain the need to maintain confidentiality to all staff involved. However, an employee should be allowed to discuss the matter with an employee representative where they have one. It should be made clear that if an employee breaches confidentiality an employer could view this as a disciplinary matter.”

– From ACAS’ guidance “Conducting workplace investigations”

WHY IS IT SO IMPORTANT

For many, the need for confidentiality may seem self-evident. But, just to spell out the most pressing reasons for guarding the details on a need to know basis…

• Fairness to the complainant – It’s difficult to raise a grievance at work. However bad the situation, the act of making a complaint brings it into the light. Yes, long term, justice and fairness may be served by that light but in the interim, the investigation process is often an ordeal. The key is ensuring that the ‘light’ is focused and limited, allowing those who need to, to see clearly while not floodlighting the matter for the whole office to see.
• Fairness to complained-about – Likewise, whatever the truth of the matter, the process is likely to be an ordeal for the ‘accused’ and a fair investigatory process usually operates on the innocent until proven guilty premise (at the very least, not guilty until proven guilty!) and having everyone jumping to their own conclusions before the facts have been established is only going to damage office relationships. (After all, people like to take sides.)
• More forthcoming witnesses – If you have any, they will be more likely to open up and answer the investigating manager’s questions more fully if they know that their responses will stay within the confines of the process. Furthermore, confidentiality reduces any risk of people changing their story based on hearing what others have said.
• Reduces office gossip – You can’t stop all gossip but it’s plain that any lack of confidentiality will only be grist to the rumour mill… with the inevitable resulting damage to relationships, teamwork, and staff morale.

What’s more, other matters can come to light during an investigation (e.g. accusations of unreliability, poor performance, even criminal acts) that may need to be acted on in some way. Again, a lack of confidentiality means this effectively legitimised gossip (when the source is an official investigation, such hearsay is given more credence than the I-heard-that-she-heard-that-he-heard… kind of gossip) is shared around the office.

• Tribunal? – However well you carry out an investigation, there’s always a possibility it will escalate. If later you’re at a tribunal over the issue, you’ll have to prove you followed your own laid-down investigatory procedures (which probably include confidentiality!). Additionally, you could be left on shaky ground if it can be shown that a lack of confidentiality led to any kind of discriminatory treatment towards the complainant.

To sum up, the following words from Australian Football League Players Association chair, Peter Bell when an official investigation was leaked to the press: “Now that confidentiality has been undermined, the integrity of the system as a whole is seriously in question.”

…a fair point for sports fans and non-fans alike.

If you want (or need) to know in detail how to carry out workplace investigations, check out our 3-part webinar series or call us on 01582 463462 – we’re here to help!