A lack of attention to investigating an accusation of assault has cost King’s College NHS Foundation Trust a reported £1 million payout.
Instead of careful consideration of the evidence, there was racial discrimination and unconscious bias – in other words, the investigators assumed the member of staff involved was more likely to be guilty of the accusations because he was of African Caribbean origin.
There had been an ugly scene with a visiting van driver in a car park, tempers had boiled over and hard words exchanged. But opportunities to gather further evidence that might support the employee’s case weren’t followed up. The employee “was assumed to be the aggressor. The white witnesses were accepted to be the victims,” concluded the tribunal judge.
It’s not enough for a formal investigation to have taken place. It has to be watertight in terms of processes and the spirit behind it or tribunals will see through to the holes. Issues of unconscious bias, in particular, heighten the level of scrutiny.
From our 25 years’ experience of carrying out investigations for large employers, these are the main reasons that tribunals find fault.
– overconfidence: inexperienced managers can already feel they know and understand the people involved in the dispute will leap to conclusions about what’s been happening: they judge people and not the evidence. They may not have a full awareness of the skills necessary for investigation, what’s going to be involved and the time commitment required.
– skipping evidence: a common problem is when the appointed investigator carries out the first interview with whoever’s made the complaint or the target of the complaint and become convinced by their argument. On this basis of belief, they stop looking for more information – thinking there’s no need because they know the truth. The manager will unconsciously filter information which backs up their judgment, and filter out information which contradicts it.
– there’s always potential for a negative cycle of poor rapport and confrontation. An investigator who, perhaps unconsciously, has concluded the respondent is guilty of the allegations, may go on to ask leading questions and interrupt their pleas for mitigation. The respondent, in turn, gets angry and challenging, perhaps causing the investigator to react defensively to the frustration.
– in-house investigators will tend to make judgements and provide conclusions in a way that avoids upsetting any of the employees involved. They’re very conscious of future working relationships and opening up any new causes for conflict – they’re rushing as quickly as possible to a comfortable outcome.
What’s needed is professional training, support and time to establish a core of internal staff able to deal with grievance, disciplinary and harassment cases – as well as involving independent investigators at the right times as a means of reducing risks from extended use of management time and mishandled situations and cases. Offering as high a level of impartiality and objectivity as possible is critical for the long-term of employee relations, increasing levels of trust and willingness to be involved in reaching fair resolutions. And ultimately, employers also need to look at the true picture of the savings from better management of grievance, disciplinary and harassment cases – rather than being ‘hidden’ in the use of management time and internal resources.