Independent workplace investigations that hold up under scrutiny.
External investigators for grievances, bullying and harassment complaints, whistleblowing disclosures and disciplinary investigations. ACAS compliant, tribunal ready, fixed fee.
A workplace investigation is the foundation of every disciplinary or grievance outcome that follows it. Employment tribunals rarely retry the underlying allegation. What they examine is whether the employer carried out a reasonable investigation, whether the employee knew the case against them, and whether the conclusion was one a reasonable employer could have reached. A flawed disciplinary investigation is the single most common reason an otherwise defensible dismissal becomes unfair.
Clerk&Counsel places independent investigators into organisations that need the fact finding done properly and done by someone with no stake in the answer. Investigators on the panel include practising barristers with employment tribunal experience and experienced non-barrister workplace investigators, and we match the investigator to the sensitivity, seniority and subject matter of the complaint.
We work with employers, HR directors, boards, schools and academy trusts, charities, professional firms, NHS bodies and local authorities, and with the solicitors who advise them. We are a clerking agency and a trading style of Found First Digital Ltd, not a chambers and not a firm of solicitors, so the investigator is instructed directly and acts independently.
Investigations we carry out.
- Grievances against senior leaders, directors, trustees and governors.
- Bullying and harassment complaints, including allegations of a toxic culture in a team.
- Discrimination complaints across all protected characteristics under the Equality Act 2010.
- Whistleblowing and protected disclosure investigations, including anonymous disclosures.
- Sexual misconduct allegations, including matters engaging the worker protection duty to prevent harassment.
- Disciplinary investigations into gross misconduct, dishonesty, expenses and data misuse.
- Culture reviews and multi-complainant investigations across a department.
- Regulated sector investigations where a referral to a professional regulator may follow.
How the investigation is run.
Every instruction starts with written terms of reference. They record the allegations to be investigated, whether findings of fact are required, whether the investigator is to express a view on whether there is a case to answer, who the report goes to, the timetable and the fee. Getting this document right prevents the two most common problems in workplace investigations, which are scope creep and an investigator being asked to make a decision that belongs to the employer.
The investigator then reviews the documentary material, agrees an interview list, and conducts interviews with the complainant, the person under investigation and the witnesses. Interviewees are told the purpose of the interview, their right to be accompanied where the policy or statutory right applies, and how their evidence will be used. Notes are taken, put back to the interviewee for comment, and appended to the report.
The person under investigation is given the substance of the allegations and a fair opportunity to answer them before any findings are made. Where new allegations emerge during the process, the terms of reference are varied in writing rather than expanded informally. Findings of fact are made on the balance of probabilities with reasons that explain why one account has been preferred over another.
ACAS, fairness and the tribunal test.
The ACAS Code of Practice on disciplinary and grievance procedures requires employers to establish the facts of each case, to carry out necessary investigations without unreasonable delay, to inform the employee of the problem, and to allow them to be accompanied at any formal meeting. An unreasonable failure to follow the Code allows a tribunal to adjust compensation by up to twenty five per cent, which is a significant exposure on top of the underlying award.
Beyond the Code, the case law sets the practical standards. The investigation must be even-handed, must pursue lines of enquiry that point away from guilt as well as towards it, and in cases where the allegation could end a career or affect professional registration it must be correspondingly more careful. Suspension should be a neutral act, kept under review and not treated as a default.
An investigation report written by someone used to giving evidence and to having their reasoning tested is a different document from one written under pressure by a line manager. It records the evidence, explains the reasoning and does not overreach into decisions that are for the employer.
What happens next.
The report goes to the commissioning decision maker, who decides what action to take. The investigator does not impose sanctions and does not chair the disciplinary or grievance hearing, which keeps the roles properly separated. Where the employer wants a separate independent chair for the hearing or the appeal, we can place one.
Where the investigation reveals a relationship that can be repaired rather than a case to answer, workplace mediation is frequently the better next step, and we place mediators for exactly that situation. Where it reveals a dispute heading for the employment tribunal, we can place counsel to advise on merits, draft the response and conduct the hearing.
- Independent chairs for disciplinary, grievance and appeal hearings.
- Workplace and employment mediation to rebuild working relationships.
- Employment tribunal advocacy and merits advice from panel counsel.
- Policy and procedure reviews following a systemic finding.
Specialist areas within this practice.
Need an independent investigator appointed?
Send the allegations in outline, the policy that applies and the timescale you are working to. A clerk will come back with investigator options and a written fixed fee.
Common questions.
When should an employer appoint an external investigator?
Whenever an internal investigator would not be seen as impartial or does not have the capacity to do the job properly. That usually means allegations against a senior leader, a director or the head of HR, complaints with a whistleblowing or discrimination element, matters involving several complainants, cases where the internal team is a witness, or situations that are already the subject of tribunal proceedings or press interest.
How long does a workplace investigation take?
The ACAS Code requires investigations to be carried out without unreasonable delay. A straightforward single allegation with two or three witnesses is usually completed in two to three weeks. A multi-strand grievance against a senior manager with a dozen interviews and substantial documentary material typically takes four to eight weeks. We set the expected timetable in the terms of reference at the outset.
Are workplace investigations confidential?
They are conducted confidentially, but confidentiality cannot be absolute. The person under investigation is entitled to know the allegations and the substance of the evidence so they can respond, and the report will normally be shared with the decision maker and with the complainant in an appropriate form. We advise employers to say clearly at the start what will be shared and with whom, rather than promising a confidentiality that cannot be delivered.
What does an investigation report contain?
A statement of the terms of reference, the process followed, the documents reviewed and the witnesses interviewed, a summary of the evidence on each allegation, findings of fact on the balance of probabilities with reasons, and, where the terms of reference require it, a view on whether there is a case to answer under the relevant policy. The decision on any sanction remains with the employer, not the investigator.
Is the report protected by legal privilege?
Usually not. An investigation report prepared to establish the facts is generally disclosable in later tribunal proceedings, and attempts to label a fact-finding report privileged rarely survive scrutiny. Where genuinely privileged legal advice is needed on the same facts, it should be commissioned separately and kept separate. We advise on that structure before starting.
Can a barrister carry out the investigation?
Yes. Investigators from our panel include practising barristers and non-barrister employment specialists. A barrister brings tribunal-standard evidence handling, disciplined interviewing and reasoned findings that stand up if the matter is later litigated. The investigator acts independently and does not act for the employer as its lawyer.
What does it cost?
We quote a written fixed fee, or a capped fee for larger matters, based on the number of allegations, the number of interviews and the volume of documents. The fee is agreed before the terms of reference are signed and there are no open-ended hourly bills.