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)

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

“She was very difficult to work with, she made errors, she didn’t read instructions properly and everything became very confusing as a result.  When I tried to talk to her about it she became defensive, aggressive really, sending me comments to my notes in RED BLOCK CAPITAL LETTERS, telling me I’d given the wrong instructions.  Everyone was working flat out at the time so I just got on and made the best of it but it was a nightmare experience, tip toeing around her.  Once the project was completed I was inclined to let it lie and probably would have if I wasn’t going to be working with her again quite soon.  Because of this I decided to give her some feedback by way of an email, on my experience of the process.

I thought my email was respectful, I gave specific examples, didn’t use any language that could be construed as rude or emotive, it definitely wasn’t an attack on her personally.  I even asked a colleague who had no stake in the project for his opinion before I sent it.

Within five minutes of pressing send I got an email back from her, telling me she didn’t like my attitude, that I was rude and unprofessional, lots of block capitals and exclamation marks.  I was astonished, I felt quite sick it was so aggressive.  I was on the verge of sending her an angry email back when a colleague told me to take a breather.  He was very calming, he told me not to respond so quickly and take some time out to think about what would be achieved by an angry email and to consider the outcome I really wanted.

After thinking about it I decided that not much would be gained by buying into this email exchange but I couldn’t bear carrying this stuff with me.  It made me feel miserable and it was unfair.  So I reluctantly spoke to my manager, I felt bad about that, she had so much on at the time.  She was good though, and suggested we got someone to facilitate a meeting between us.  My manager suggested it should be someone who wasn’t directly involved in our work and who would take an independent approach.

The woman wasn’t keen on a meeting, she said there was no reason, and she didn’t want other managers involved talking about her.  My manager sorted it and got her to agree to mediation, I think this may have been because of the assurance of confidentiality.

The Mediator was fantastic, he encouraged us to look at each other’s point of view, what we needed from each other, what would make it better for both of us, at the end I think we were both reassured and had a clear agreement to work to as the way forward.

I can’t bear to think what would have happened when we started on the next project if we hadn’t had the mediation.  We’re not big buddies but we get along fine and have a clear understanding of what the other one needs to work together.”