Legal

Conducting internal investigations in the age of Covid-19

8 Jun 2020 By Katie Fudakowski and Maria Strauss

Katie Fudakowski and Maria Strauss explain how employers can maintain 'business as usual' for employee relations during the coronavirus outbreak

The Covid-19 pandemic has thrown up many unprecedented challenges for HR professionals, not least the difficulties of supporting staff through the direct effects of the outbreak. While some of these issues are new in their entirety, such as questions of furloughing, others concern how best to maintain a sense of ‘business as usual’ when navigating these uncharted waters. 

The question of workplace investigations falls into that latter category. While it may be tempting to postpone investigations until some sort of normality returns, businesses will need to decide where and how it is appropriate, fair and reasonable to keep vital HR functions running smoothly. 

The risks of delaying 

A compelling reason to continue with investigations is that, by further delaying such processes, employers may miss the opportunity to tackle a situation efficiently before it deteriorates. During such unfamiliar times, a delay could prove particularly detrimental for the employees, particularly those who are already more vulnerable as a result of the social isolation of lockdown.

There are also practical reasons to support maintaining momentum, as conceding to delays may in fact prove more costly and time-consuming for businesses in future. Employers should be aware that any unreasonable delay in carrying out a grievance or disciplinary investigation may amount to a breach of the Acas Code of Practice, with the potential for a 25 per cent uplift in respect of an award in employment tribunal proceedings. This, coupled with a backlog of work building up, suggests it is in everyone’s best interests to keep things moving. 

Where an employer does decide to start or continue with an investigation, the next consideration will be how to approach this remotely, without compromising any aspect of the procedure.

Fail to prepare, prepare to fail

There are a number of new factors that will need to be considered; for instance, choosing the most appropriate videoconferencing platform to use. To ensure the investigation goes off without a hitch, employers will need to put time aside to check that all those involved are able to make use of the selected software. Similarly, key to the smooth running of the investigation is providing access to any relevant documents before the meeting; Dropbox and OneDrive are both sensible solutions for sharing documents online and can help mitigate issues around needing to download large files.

Given the often sensitive nature of investigations, data privacy will also be a key consideration and employers should seek advice from IT in advance to ensure they do not fall victim to breach claims. Additionally, while establishing separate lines of communication is essential to allow individuals in the same camp to converse, parties should remain mindful of the privacy and security issues ensuing from the use of these messaging platforms. It is important to remember that any communication via platforms such as WhatsApp could be disclosable in future legal proceedings, so extra caution must be taken to ensure the lines between formal and informal communication are not blurred.

While the above factors might pose novel challenges, the latest Acas Code of Practice guidance rightly points out that legal obligations and best rules of practice still apply and – arguably – are more important than ever. The employee’s right to be accompanied, to be updated on any developments in their case, and to be given adequate notice of the hearing, remain vital to guaranteeing procedural fairness throughout the process. Although tribunals are likely to be more sympathetic towards employers while they try to weather this particular storm, complying with the basic legal requirements remains an essential matter. 

Keeping the show on the road

A diverse range of issues for consideration will likely arise when conducting a remote grievance or disciplinary investigation, and while not all cases will be well-suited to a remote approach – for example, owing to a language barrier or a disability – the takeaway message remains crystal clear. For HR professionals to succeed in maintaining ‘business as usual’, continuing with carefully planned investigations will be paramount to their efforts.

Katie Fudakowski and Maria Strauss are employment partners at Farrer & Co 

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