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Matters for Senior Executives to Consider during a Remote Workplace Investigation

We recently published a news alert highlighting the most common queries we have been receiving from senior executives in the current climate, one of which was “how can senior executives deal with allegations of wrongdoing and investigations?”

Whilst allegations of employee wrongdoing are not a new occurrence, how these allegations are addressed has, by necessity, altered in the current climate where the majority of employees remain working remotely. In this alert we consider some of the legal, practical and well-being issues to consider when in relation to a virtual workplace investigation.

2020 has seen unprecedented disruptions to employment and while all are feeling the impact, senior executives in particular have noticed specific adverse impacts in their employment. One of the common questions we have been asked during this time is “how can senior executives deal with allegations of wrongdoing and investigations in the current climate?”

When an allegation of wrongdoing has been made, or a workplace grievance raised, an employer will generally need to investigate the matter, make findings and take appropriate disciplinary action if any wrongdoing is found to have taken place.

The Covid-19 pandemic has necessarily altered the way in which workplace investigations are conducted. Remote investigations bring with them a host of additional considerations when conducting and participating in a procedurally fair investigation. 

Senior executives, particularly those in regulated industries, appreciate the potentially devastating consequences which allegations of wrongdoing and subsequent adverse findings may have on both their future career and reputation. Another concern at the present time is that such allegations may be relied upon to exit a senior executive and seek to absolve the company of its responsibility to pay compensation, during a time when businesses are increasingly cost conscious and the job market is likely to be particularly difficult.

A senior executive who is either required to investigate allegations of wrongdoing in the current climate, or who is subject to an investigation into their own alleged wrongdoing, should be aware of the particular challenges of virtual investigations and disciplinary processes, and must tailor their legal and strategic approach accordingly.

Some of the matters which senior executives in this position should consider, include:

• Postpone or proceed: Updated guidance from ACAS on conducting workplace investigations suggests that for cases involving “relatively minor” disciplinary issues, it may be appropriate to consider whether they can reasonably be dealt with at a later date. In circumstances where it is apparent that remote working is likely to continue to some degree in the foreseeable future, however, it is doubtful that postponing investigations until relevant parties have returned to the physical workplace is a pragmatic or sensible long-term option.

• Access to Materials: Whilst employees working remotely will likely have access to centrally held data needed to perform their duties, some evidence may be stored on local drives or only in hard copy documents onsite. Arrangements may need to be made to allow such materials to be accessed and examined by the parties, and the timetable for conducting the investigation may need to be extended accordingly.

• Investigation Logistics: An employee who is the subject of a workplace investigation retains the right to be accompanied during a disciplinary meeting, even if that accompaniment is more likely now to happen remotely Employers are advised to be amenable to requests for short postponements as a result of the unavailability of the employee’s companion, particularly in circumstances where such unavailability may be related to the pandemic, for example as a result of difficulties travelling or because of increased caring responsibilities.

Where a hearing is being conducted by video conference, the employee should have access to all equipment necessary to participate in the conference. All participants should be reminded of their obligations of confidentiality during the investigations and should be explicitly directed not to record meetings.

• Wellbeing of Participants: Participation in a workplace investigation is, by its nature, a stressful process. Coupled with other concerns which employees may have, such as family, health or financial worries, it is vital that a senior executive who is involved in a workplace investigation is provided with adequate support during the process.

Regular catchups should take place to monitor employee wellbeing and flexibility should be demonstrated when scheduling investigatory and disciplinary meetings.

As long as care has been taken to ensure that procedural fairness is afforded to all involved, there is generally little reason why a virtual workplace investigation cannot occur. Given the changes to the workplace landscapes in recent times, it is likely that such investigations will be a staple of the future and senior executives should ensure that they are confident and cognisant of their rights and obligations in such a scenario.

Our firm has extensive experience in advising senior executives who are the subject of a workplace investigation as well as those who have responsibility for conducting them. If you would like to discuss any of these issues further, or for guidance on your specific rights, responsibilities and potential liabilities, please contact Beth Hale (Partner) who specialises in partnership and employment law issues for multi-national employers, senior executives, firms and partners.