A former NHS worker has been awarded £933,115 by an Employment Tribunal that found he had been subject to racial discrmination and unfair dismissal.

The Tribunal found that Elliot Browne had suffered “systematic discrimination” and “an intimidating environment” while employed by Central Manchester University NHS Foundation Trust. The Tribunal also found that the Trust had failed to investigate Mr Browne’s grievance sufficiently.

A level of investigation that could stand up to scrutiny may have gone some way to reducing the costly impact on the Trust. Not only in terms of the level of compensation awarded, but the Trust’s reputation as a fair employer with a genuine commitment to an anti-discriminatory workplace.

The Trust is appealing the Employment Tribunal’s decision. In the meantime, however, it remains open to allegations that it endorses a culture of institutionalised racism.

“The objective is to encourage people who are afraid of having conversations that they ought to be having, to have them.

The objective is not to protect employers from saying discriminatory comments.”

Poor performance and retirement were cited as examples of when a protected conversation could be necessary.

The pros and cons of protected conversations in the workplace will no doubt continue to be debated throughout the consultation period. However, a simple question appears to be central to this debate:

The implementation of protective conversations without fear of a tribunal

OR

fundamental management development training and transparent policies and procedures?

If managers have the skills to deal with sensitive issues within the context of statutory requirements, alongside transparent company policies and procedures is there a need for the government to introduce protected conversations’ legislation? Indeed there are numerous workplace scenarios where it can prove costly if the manager does not have the conversation they ought to be having and these don’t necessarily result in claims of unfair dismissal. For example, poor working relationships and sickness absence can be unnecessarily disruptive and costly if a manager doesn’t have the training to deal with them at an early stage.

Managers trained in open and constructive communication will be confident and able to conduct all types of workplace discussion in a timely manner and without fear of exacerbating a sensitive situation.

Transparent policies and procedures

Relevant knowledge of statutory requirements and company policies and procedures

An open and constructive approach

A letter from Harbottle and Lewis, the legal firm comissioned by News International to carry out an investigation into allegations raised during an Appeal against dismissal, expresses the firm’s concerns that, so much weight has been given to a piece of work of such “limited and narrow nature”.

Harbottle and Lewis are clear that a retainer was received to cover one particular dismissal case, within the confines of emails made available by News International, and not a wider investigation “to find out what the hell was going on” as reported by Rupert Murdoch at a Parliamentary Committee.

Workplace investigations conducted under the HR umbrella, e.g. disciplinary and grievance, are most effective with a clear, systematic plan of action that includes arrangements to review progress and revise the terms of reference if it becomes appropriate.

A clear statement at the beginning of any report, outlining the scope, purpose and role of investigators can help to minimise potential misrepresentation of the investigation at a later stage.

• Adopt a systematic plan of action at the outset
• Identify mechanisms for reviewing progress
• Revise the plan and terms of reference only if appropriate
• Trained investigators
• Comprehensive record keeping throughout the process
• Clear statement of purpose included in report

The News International media coverage has reinforced the importance of impartiality, together with a level of investigation that matches the particular circumstances and these elements are fundamental to any efficient internal investigation.

A former Metropolitan police assistant commissioner’s decision to accept hospitality from News International while leading the first police investigation in 2006 was, this week, queried by a Parliamentary select committee and criticised by the President of the Association of Chief of Police Officers who said “in those precise circumstances it seems an unwise decision”.  The question marks around impartiality have generated concerns regarding the integrity of the individual and the decisions taken at the time.

The thoroughness of the investigations into the News of the World allegations, including internal, police and the press complaints commission, have also come under scrutiny, with dramatic results: Murdoch’s withdrawal of his bid for BSkyB; News International’s reputation globally; the closure of the News of the World; individual reputations; and a planned Public Inquiry.

Workplace investigations have the potential to go before an Employment Tribunal and examined under the Employment Rights Act 1996.  Whether a reasonable investigation has been carried out can be a vital factor and the terms of reference should be considered carefully at the outset of any investigation, with reviews throughout the process.

What is a reasonable workplace investigation?

The particular circumstances of the case determine the depth of the investigation

Carried out in line with relevant organisational policies and procedures

The objective is to establish the facts of the matter, not to prove someone’s guilt

Employment law cases – useful reading

British Home Stores Ltd v Burchell (1978)

Gateshead Council v Hope (April 2011)

The newspaper’s vast advertising revenue is under threat as major multi-national advertisers consider their positions pending the completion of a formal investigation.

In his Channel 4 interview with Simon Greenberg of News International Jon Snow calls into question the integrity of this highly sensitive internal investigation and hits on some fundamental weaknesses. Such basic weaknesses leave an organisation wide open to criticism and scepticism of its commitment to establishing the facts of a case, and can have a far-reaching impact on reputation and credibility.

Jon Snow asks whether the impartiality of the News of the World investigation has been compromised because the lead investigator is the person who was in charge at a time when phone hacking allegedly took place, therefore clearly involved in the matter.

An impartial investigator is crucial to promote and protect the integrity of the process and the outcome, as well as the organisation and the individual. An investigation led by a person who is involved in the case is open to claims that it is a sham, that the individual has a vested interest in the case that has the potential to impact on the outcome, as well as raising concerns about whether the process is thorough enough.

During the interview, Simon Greenberg provided a sketchy outline of their way forward, stating News International’s intention to deal with facts as they emerge and “She is leading the investigation, if it is necessary to ask her certain questions as part of the investigation that is what we will do”, raising questions not only about the suitability of the lead investigator but also the organisation’s commitment to a structured investigative approach.

The clear presentation of a transparent, planned and systematic approach to an internal investigation from the outset serves to reinforce the integrity of the investigation and credibility of the organisation, while ensuring the process is efficient and effective.  It also adds credence to the findings and outcome.

While the News of the World phone hacking scandal is clearly on a much larger scale than our everyday workplace issues, the basic principles remain the same for all organisations committed to carrying out transparent and efficient internal investigations.

Clear channel of accountability … Independent investigators … Report facts based on evidence

Clear remit for investigators … Witnesses understand their rights and responsibilities

Thorough and systematic analysis

Workplace investigations can be time consuming and distracting from normal business.  Employers can find the process daunting or may believe an investigation is unnecessary in the particular circumstances. However, if an investigation is not carried out or handled badly the consequences can include employment tribunal and claims of unfair dismissal. Additionally, the integrity of the workplace procedures will be undermined.

The importance of even handed and fair workplace investigations has been highlighted by recent employment law where a dismissal for gross misconduct was ruled as unfair due to a failure to carry out a proper investigation: Salford Royal NHS Foundation Trust v Roldan [2010] EWCA Civ 522 www.employmentcasesupdate.co.uk