The number of employment rights under which an employee could make a tribunal claim has more than trebled since the 1980s. The level of complexity has spiked over the past five years: the break from the old assumption that senior figures in an organisation make the rules for what constitutes an acceptable outlook and behaviours, the rise of employee activism: #MeToo, Black Lives Matter, and controversy over gender and trans issues. Now we have the tensions around asking people to work under Covid-19 conditions, introducing yet another dimension to the potential for disputes and disruption.
According to the National User Group of Employment Tribunals the number of cases doubled following the scrapping of fees in 2017. The pandemic has both led to worse bottle-necks and more cases: the level of demand means some tribunals are not listing new cases until December 2021. Citizens Advice has warned that the backlog in the system will exceed half a million cases by spring next year.
Overall there’s been a culture change that makes the workplace a melting pot of sensitivities. Employees aren’t letting examples of micro-aggressions just go. They expect to have their voice heard and be able to challenge workplace attitudes that make them uncomfortable. And they have social media as an easy channel to make themselves heard. Employers have to be ready to be challenged more often on the ‘truth’ of events and behaviours in the workplace, for more reasons and to a greater degree of intensity. Because demonstrating justice in itself is more difficult. Minority groups have a heightened awareness of how their perspective isn’t understood when it comes to the justice system.
In this sensitised and challenging context, HR need to make sure their approach is rock solid: that the best available standards have been followed, there’s been transparency and an explicit trail of professional behaviours – and as a result, all judgments have been fair and reasonable. People’s jobs and future careers are at stake. Along with the organisation’s reputation, its brand, the whole culture and experience of what it’s really like to work there.
HR will usually turn to ACAS guidelines on investigating grievances. But, arguably, ACAS standards have been left behind by the pace of change. They were written from a traditional (largely white and male) perspective. The guidelines are also just that, a guide, with no mandate to monitor or enforce the actual following of good practice.
From the regular failures reported at Employment Tribunals, from the years of anecdotal evidence of working with employers, we know that sensible practices aren’t being followed. The gap between what HR say is being done and reality is a chasm. A local authority was recently fined more than £100,000 for the unfair dismissal of a manager, the ET deciding that the material gathered as part of an investigation had been “meaningless”.
There are short-cuts being taken everywhere. Investigators will, at best, receive a day of training – in other words, the people involved with working out evidence for a complex and painful sexual harassment case will have far less training than those looking into a health and safety case of staff falling off a ladder. And that training might only be about process and guidelines, not the actual skills needed to be an effective and fair investigator, able to stand up to increased scrutiny. When important issues such as racism arise, managers can panic and begin to act in irrational ways. Basic good practice, like showing care to-ward complainants and updating complainants on where they are the process or regular communication, is forgotten. Tensions increase. It’s in this context that more employers are asking for a black person or person of colour to be used in investigations – to ensure any interview is conducted by someone who understands more of the sensitivities and experiences involved, so that the level of understanding can’t be challenged.
In order for HR to make sure investigations processes are watertight, the standards used should follow three ‘golden threads’:
Integrity: all of the process, people and policy involved in the investigative process must demonstrate independence, impartiality and fairness; they should be clear about the necessary commitment to being guided by the evidence and eliminating bias; with awareness of the impact of social identity on their judgement. Investigations shouldn’t just be handed over to senior managers – those most liable to make snap judgments based on what they think they already know.
Transparency: the process, people and policy need to demonstrate openness and honesty with stakeholders, in order to give confidence in the fairness and rigour of the pro-cess while maintaining confidentiality.
Proportionality: should be applied at all times, not only to the timeliness of the process, but to the volume and relevance of the evidence obtained in relation to the severity and complexity of the issues and the likely outcome and impact on the parties and organisation.
Overall, what’s needed from HR is renewed attention to the reality of how investigations are being carried out, how they can cope with the ever-changing context; more thorough and professional skills training in investigations; and making sure there is quality assurance in terms of measuring performance and learning from the process. Compassion and care – even-handedly shown to all those involved – and attention to their psychological wellbeing are essential to a healthy investigation process.
There are no formal standards for investigations – which means you need to be even more careful in terms of considering training and the use of external expertise, given the greater potential risks to the organisation from poor practice in serious cases. Here’s a checklist of key issues:
- All investigators have been trained via an assessed programme
- There is a standard investigator’s checklist and standard report templates; investigation outcomes are monitored to spot potential inconsistencies in judgements and disciplinary outcomes
- A standard reporting format is used across all the organisation’s departments
- Outcomes are monitored and reviewed
- Standard notifications are made to employees by the HR team
- Investigation papers are kept on file consistently, even if there’s no formal disciplinary hearing, and only ever held centrally by HR
- Records kept are in line with the Data Protection Act
- Final decision-makers on cases are separate from those people carrying out investigations
- There is a process to formally ‘close’ grievances and document employee acknowledgement of a grievance resolution.
Razia Aziz is a leadership consultant and associate investigator for workplace relationships specialist CMP. Razia has studied and worked professionally in the field of diversity, equality and inclusion professionally for over 20 years as a researcher, writer, coach, consultant, trainer and facilitator. During that time she has gained Advanced Diplomas in Integrative Counselling and Executive Coaching and become a Licensed Practitioner of the Trager Approach (bodywork).
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