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 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

The impact on already stretched organisational resources, in terms of cost and additional work to individuals, has been obvious throughout.  In addition, there is often a lack of clarity around what is expected from an employer when carrying out a workplace investigation.

When may a workplace investigation be necessary?

Alleged misconduct
Allegations of bullying, harassment, discrimination
Protected disclosures
Capability
Complaints from customers or clients

What are the key attributes of a successful workplace investigator?

Suitably trained and clear of their role
Impartial and independent of the case
Always has an open mind
Ability to go behind the information and not take statements at face value

Why do employers need a transparent and efficient approach to workplace investigations?

In disciplinary, misconduct and potential dismissal cases employers may find their workplace investigations scrutinised in an Employment Tribunal and British Homes Stores Ltd v Burchell UKEAT/108/78 is a significant and informative employment law test case in this regard.

In this context

The employer must genuinely believe that the individual is guilty (of the misconduct)
There are reasonable grounds to sustain that belief
As much investigation into the matter as was reasonable in the circumstances should have informed that decision

Allegations of discrimination, harassment and protected disclosures also have the potential to come under scrutiny in this context.

It is important to recognise that employers are not required to conduct an investigation in the same way as a criminal investigation and future Opt blogs will explore what is a reasonable investigation.

Workplace Investigations – Objective, Impartial, Thorough

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