We have adopted a specialist team approach to our practices for many years. We feel that this is the way our clients want us to work, and that specialisation leads to the provision of a better service.
We have adopted a specialist team approach to our practices for many years. We feel that this is the way our clients want us to work, and that specialisation leads to the provision of a better service.
Insights
12/06/2025
The second in the series of short articles about independent investigations looks at the importance of the Terms of Reference.
Key to the success of an independent investigation is ensuring the Terms of Reference are fit for purpose. If you have determined that an investigation is needed, it is only going to be as good as what you have instructed the investigator to do. My top tips include:
Clarity about the policy under which the investigation has been commissioned. This steers the time scale in which it has to take place and the process involved. Not knowing ‘what is going to happen’ during the process obviously really unsettles staff. Referencing your policies will clarify whether interviewees might be accompanied and if so, by whom. It will clarify what to expect as an outcome – for instance, a ‘stage two’ type hearing, or an escalation up to a decision maker. Experience has shown this is critical if the investigation becomes scrutinised as part of an ET assessment of whether or not a dismissal was unfair.
Precision about the allegations that are being investigated. This means using the actual words from the written grievance or complaint that has been made. This still requires wordsmithing to extract precise matters from – perhaps – a multiple-page grievance but avoid paraphrasing and alleging ‘in general’ or ‘on occasion’. Experience shows that more precision enables findings to be made that mean employees are more likely to be able to move on and heal rifts. Grievances are so often about poor communication, not about personal judgements, or attacks. Similarly, precise findings on precise allegations ensure greater fairness when deciding what to do next or what sanction may be appropriate.
Boundaries that establish what the investigation is, and just as importantly is not about, are important to the fairness of the investigation. Boundaries about the role of the investigator should be clear in terms of, for instance, producing accurate records of the interviews carried out, reviewing all relevant material and exercising their discretion fairly and independently about what is relevant, and producing a report that sets out findings and – if commissioned to do so – make recommendations. My recent tribunal experience has shown that this was important in a situation where an employee alleged the investigation itself amounted to a detriment but the employer was able to refer to the terms of the reference to which the employee had contributed and consented.
By following these tips, you will better ensure that your investigation is thorough, fair, and effective. Clarifying policies, using precise allegations, and drafting well-defined boundaries are essential to maintaining the integrity of the process and achieving a successful outcome.
If you need assistance with drafting Terms of Reference or conducting an independent investigation, please feel free to reach out. Our team is here to support you every step of the way.
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