Conducting investigations: a reflection on ITV and Philip Schofield

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The ITV management team have come under scrutiny for allegedly turning a ‘blind eye’ to what many perceive to be an inappropriate office romance involving Philip Schofield.

This has raised some interesting parallels to some of the decisions we have helped clients make recently at Byrne Dean.

  • Can you investigate suspicions of misconduct informally?
  • At what point does an investigation become formal?
  • When do you have to inform the subject they are under investigation?  

Clients typically want to get to the bottom of things if there is something foul afoot. But they also, rightly, don’t want to cause more disruption than is strictly necessary.

Can you investigate suspicions of misconduct ‘informally’?

Once you are looking into something you are effectively investigating. Whether a process is labeled formal or informal will not make a key difference. Not to the individual being investigated, nor to those being asked to give their account of events.

The key issue in the ITV case was whether they should have conducted further investigations. So, the key question is not whether it’s a formal or informal investigation but questions such as:  

  • How are you going to investigate?
  • How far are you going to go?
  • Who is going to do it? (when does it require someone with sufficient independence)
  • When will you inform the subject?
  • What will you tell others is the reason for your questions?  

Your choices will give the process a more or less formal feel. The key is: is the approach fair and proportionate, having in mind all the parameters (legal, financial, regulatory, personal and business risks, reputation, culture setting).    

When do you have to inform the subject they are under investigation?

Courts have repeatedly emphasised that in disciplinary procedures, it is essential for the accused employee to know the case against them, be informed of important evidence, have the opportunity to challenge that evidence, present their own evidence, and argue their case. But there is no legal requirement that they be informed at the investigation stage.

The key legal requirement is that the subject be informed of the complaints against them and supporting evidence before a disciplinary meeting.  Often it will make sense to inform the subject from the outset and to interview them as part of the investigation (see more below).  

But sometimes clients understandably worry about the impact it will have on the individual(s), including the subject, and the business if the subject is informed they are under investigation.  

It is possible to first establish whether there is enough evidence to justify notifying the subject they are being investigated. It may be that after reviewing documentary evidence or conducting a couple of interviews, you have decided there is no case to answer.

This has to be balanced against the risk that the individual finds out they are being investigated without their knowledge. Often this will have a huge impact on the subject’s trust in the business.

We dealt recently with a case where the individual had resigned once they found out inquiries were being made about their conduct. If retaining the trust of the individual is vital, informing them will likely be the right way.

What can you do to reduce the impact on the subject?

You may need the subject to continue in their role for business continuity. Investigations are extremely stressful for those under investigation (as well as those raising allegations and even witnesses). The fact that they are under investigation, if widely known, may also undermine their ability to lead in the future.  

Effective ways of preserving the status quo until findings have been made are:

  • Taking a proportionate approach to the investigation, in particular considering investigating in stages.
  • Explaining the investigation approach to the subject to reassure them on proportionality.  

We dealt with a recent case where we explained to the subject we were first going to review documentary evidence, and only after that initial review would we speak to individuals in her team (which in the end proved unnecessary as after reviewing the allegations as against documentary evidence we felt comfortable reaching findings that the allegations should not be upheld).  

In another case, we were investigating allegations of bullying against a partner in a professional services firm. We conducted some interviews with their team members as part of a culture review, rather than as a disciplinary investigation. Byrne Dean was credible in conducting such a review as we are a workplace consultancy not a law firm or solely investigation outfit.  

Investigations never fail to bring up sensitive questions which require very careful judgement calls. If you ever need help with how to move forward on something like this, reach out to our team.

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