In general, former employees are not under any obligation to participate in a workplace investigation. Accordingly, unless there is a specific contractual or statutory obligation that compels them to participate, there are limited avenues for an investigator to obtain their evidence.
You should cooperate fully with an investigation: You should cooperate fully with the investigation and provide any information or documents requested by the employer. If you fail to cooperate with the investigation, it could negatively impact the outcome of the investigation and result in discipline.
Though you might think it would be in the interests of a complainant to support their complaint or the interests of a respondent to defend a complaint, neither party is under any obligation to participate in a workplace investigation.
No, you do not have to answer the investigator's questions. However, you should remember that the interview is your chance to tell your side of the story and if the investigator asks you a question it is because the investigator believes the answer might be important to the investigation.
Many employees interviewed have the urge to exaggerate and paraphrase the alleged harasser's statements and actions. It's critical that you don't do that, because the moment it's proven that you exaggerated one thing, the investigator will be skeptical about everything else you say during your interview.
Even though the employer might subjectively believe it is reasonable to investigate an issue, if that belief is objectively unreasonable, then the employee cannot be directed to take part in the investigation.
Informing the employee
The employer should explain the reasons for the investigation, who will be carrying it out, what they are going to do, that they will talk to any witnesses, and what will happen next. There are ACAS letter templates online that can be used in grievance or disciplinary cases.
Workplace Investigations require the use of the standard of proof called the balance of probabilities as distinguished from the standard applied in criminal cases being beyond reasonable doubt.
The purpose of an HR investigation is to enable the employer to understand the full facts of a matter or incident and allow fair, objective and informed decision-making to bring the matter to a conclusion.
Common investigative flaws include where the scope of the investigation is too narrow; not all relevant witnesses are interviewed; there are unjustifiable delays; there is over reliance on hearsay; or the wrong (or no) standard of proof is applied to the facts.
During investigation interviews, the complainant, respondent, and witnesses will have the opportunity to present information and material related to the situation. The investigator will ask questions related to the complaint, listen, and take notes.
Many workplace investigations stem from allegations of general misconduct, or bad behavior. Behaviors such as yelling, making threats, rudeness, absenteeism, tardiness, gossiping, or substance abuse can lead to a workplace investigation to determine what occurred, and what disciplinary measures need to take place.
The police play the most important role in the investigation of a criminal case. Police have to investigate the cognizable case and find the truth as per the provisions of Indian laws.
When a meeting is proposed, everyone has the right to know the purpose of the meeting and who else will be there. Meetings should involve active discussion. If the purpose is simply to give information, there may be more efficient ways to do this, such as email or telephone.
Importantly, the investigation process itself (including your investigation meeting) should not result in any disciplinary action.
You should be honest, open and cooperate fully at the meeting - but at the same time be careful about what you say. An investigation will often feel like a fishing exercise. The more you say, the more likely it is it will include something that will be used against you.
Ideally, an HR investigation should be completed within one to two weeks of receiving the complaint. Responsiveness to an employee's complaint about workplace concerns not only enables the employer to gather the best information but also allows the employer to resolve internal problems before they are widespread.
Outline the questions you want to ask ahead of time. Ensure they are clarifying and open-ended questions. Some details uncovered will be less relevant, and interviews have the potential to get sidetracked. It is important to remain on task and collect only information pertinent to the claim being investigated.
Gross misconduct can include things like theft, physical violence, gross negligence or serious insubordination. With gross misconduct, you can dismiss the employee immediately as long as you follow a fair procedure.
If you're unable to attend on the day for an unforeseen reason, for example, transport problems, you should let your employer know as soon as possible. If you fail to attend the meeting and don't have a reasonable excuse for not attending, the meeting may go ahead without you and you will not be able to put your case.