By Musab Hemsi, a partner at Anderson Strathern
Employment lawyers are well versed in misconduct or grievance investigations at work. We can advise on the beginning, middle and end of the investigatory process and what should be expected for both the employer and employee.
So far so good. But one aspect which often escapes lawyers’ critical consideration is – what happens to the parties involved after an investigation is concluded?
While being proficient in the investigation process is crucial as an employment lawyer, it is also important to bear in mind the effects of an investigation and how these can be mitigated and addressed when it is all over.
Naturally, when an investigation has run its course, the individuals involved may find themselves in a period of uncertainty. They may sense a new tension existing between them or feel the effect on more practical aspects of life at work, for example, establishing the appropriate level of communication with the other party.
This could result in an employee feeling unable to bring their whole selves to work and to contribute fully.
To help navigate these situations, there are four different areas employers should consider or act upon following an investigation:
- Status – Employers should give thought to the issue of status, for example, if one employee involved in the investigation reports to the other as their line manager. Consideration should be given as to how this arrangement should be treated in practical terms. Would a line management change benefit everyone, including co-workers?
- Certainty – It is important for employees to have certainty and clarity following the investigation, for example, if supervising lines have been impacted and whether the outcome is confidential. It is beneficial for the employer to take a proactive role in establishing and communicating these elements.
- Fairness – It is, of course, natural for an investigation to stir up difficult feelings. Employers should be mindful of the need to ensure employees involved in the investigation treat each other fairly and with respect in the aftermath.
- Relatedness – The issue may arise where parties are at a loss for how to interact with each other following an investigation. Support can be offered, directly or through an agency, ie, an employee assistance programme or coach.
There are several steps employers could facilitate between the employees involved in the investigation to address any issues which may arise after its conclusion.
For example, an employer may facilitate a ‘clear the air’ talk. This would allow the employees an opportunity to establish a new working relationship following the investigation, knowing that each party has said what they wish to say on the matter.
It may also be constructive for the employer to schedule ‘ground rules’ meetings between the parties. Having clearly set guidelines and a mutual understanding of where each party stands will reduce uncertainty for employees or repeat offences.
Employer-facilitated mediation may prove to be beneficial in helping the employees put the investigation behind them and feel able to move past the issues which were caused, or have arisen, as a result of, the investigatory process.
Lastly, an employer could suggest that a simple but genuine apology may be all that is needed to diffuse the tension and allow both parties to feel comfortable being around one another at work.
The suggested solutions are not exhaustive and may not be effective in every case. However, facilitating solutions will help to establish a more comfortable working environment for all parties while also helping prevent further flare ups.
