Navigating the legal landscape of complaint investigations
Conducting thorough and legally sound complaint investigations is not merely a matter of internal policy; it’s a crucial aspect of adhering to various legal and regulatory frameworks.
Conducting thorough and fair investigations can result in many important organisational benefits, such as reduced legal costs, improved employee morale, and enhanced reputation.
In the UK, for instance, employers must be mindful of employment law, including the Equality Act 2010, which prohibits discrimination, harassment, and victimisation. A poorly handled complaint investigation into allegations of such behaviour can expose an organisation to significant legal risks, including costly tribunal claims and reputational damage.
Furthermore, principles of natural justice and procedural fairness are paramount in any complaint investigation. This means ensuring the complainant and the respondent have the right to be heard, to understand the allegations against them, and to present their case. Failing to adhere to these principles can render the investigation flawed and legally challengeable.
Depending on the sector, specific regulations, such as those overseen by the Care Quality Commission (CQC) in healthcare, may also outline expectations for handling complaints and conducting investigations. Understanding these legal obligations is a cornerstone of effective complaint investigation practice.
How should complaints be investigated?
If there is a complaint in the workplace, such as a grievance or inappropriate behaviour, the employer should try to understand the facts of the matter by way of an investigation. Knowing how to investigate a complaint will help to resolve an incident quickly and correctly, displaying respect to the complainant as well as avoiding legal issues.
Employers who fail to investigate a complaint effectively may not treat those involved fairly, which could see the matter ending in a tribunal, not to mention the potential reputational damage caused.
The key learning points from our work in complaint investigations are that they need to demonstrate independence, competence, authority and credibility, cultural sensitivity and objectivity.
When considering how to investigate a complaint there are some important steps to follow to ensure organisations conduct thorough, fair, and effective complaint investigations, mitigating risks and creating a more positive and just workplace or healthcare environment.
1) Initial Assessment: Carefully review the complaint to understand the nature of the allegations. Determine if the issue falls under the organisation’s formal complaints procedure. Assess whether an informal resolution is possible and appropriate. Decide if a formal investigation is warranted based on the severity and nature of the complaint.
2) Planning the Investigation: Define the Scope by clearly outlining what aspects of the complaint need to be investigated. Appoint an impartial and trained individual or team to conduct the investigation. Consider using an independent investigator for complex or sensitive cases.
Identify who needs to be interviewed (complainant, witnesses, alleged perpetrator) and what documents or other evidence need to be gathered (emails, CCTV footage, policies, etc.). Set realistic deadlines for each stage of the investigation.
Detail the steps involved in the investigation, including interview protocols and evidence handling and ensure the investigation aligns with relevant organisational policies and procedures.
3) Gathering Evidence: Interview the Complainant: Allow them to explain their concerns in detail, ask clarifying questions, and obtain their account of events. Speak to any individuals who may have relevant information about the allegations and provide them with the opportunity to respond to the allegations and present their perspective.
Gather and review any relevant documents, electronic communications, or other forms of evidence and be sure to keep detailed notes of all interviews and evidence collected. Ensure confidentiality and data protection principles are followed.
4) Review and Evaluate Evidence:
Analyse all evidence impartially and without preconceived notions, considering all the perspectives by weighing the accounts of all parties involved. Evaluate the consistency and reliability of the evidence to determine findings – based on the balance of probabilities (or a higher standard if required by policy), determine whether the allegations are substantiated.
5) Take Action and Communicate:
Report findings by preparing a clear and concise report outlining the investigation process, the evidence gathered, the analysis, and the conclusions reached. Communicate the outcome of the investigation to the complainant and the alleged perpetrator (and other relevant parties, as appropriate) and ensure they understand the findings and any actions to be taken.
Take appropriate action based on the findings, which may include disciplinary measures, policy changes, mediation, or training. Ensure lessons are learned by identifying any systemic issues or areas for improvement highlighted by the complaint and the investigation process then implement changes to prevent future occurrences. Ensure that any agreed-upon actions are monitored following their implementation.
Who can conduct a complaint investigation?
During the course of our work, we have found organisations have not always been clear on how to investigate a complaint which has led to unacceptable experiences for many of those involved. Understanding who can conduct a complaint investigation is vital for the process to be managed effectively to ensure fairness, and avoid potential legal ramifications of mishandling.
The complaint investigator should be someone not directly involved with the issue such as a senior manager or member of HR to ensure impartiality and objectivity. If the investigator has a personal relationship with either the complainant or the respondent, or if they were involved in the events leading to the complaint, their findings may be perceived as biased, undermining the credibility of the complaint investigation.
They should have received investigation training to ensure they have the support they need, as well as ensuring the complaint is investigated adequately. This training provides them with the necessary skills in interviewing, evidence gathering, and objective analysis, contributing to a more robust and defensible investigation.
Training courses in complaints handling and workplace investigations can be extremely beneficial in this regard, ensuring those carrying out the investigation are equipped with the necessary skills in interviewing and evidence gathering, and able to identify and address the underlying issues of what went wrong and why, which contributes to a more robust and defensible investigation,
Depending on the severity, size of the investigation, and whether impartiality is a significant factor, it may be necessary to work with a independent workplace investigator. Engaging an external expert brings an added layer of credibility and can be particularly valuable in highly sensitive or complex cases where internal perceptions of bias might exist.
Tailoring Your Approach: Investigating Various Complaint Types
While the fundamental principles of complaint investigation remain consistent, there are subtle differences between complaint types which require a tailored approach.
How are bullying and harassment complaints investigated?
An bullying and harassment investigation may necessitate a more sensitive and victim-centric approach. Investigators need to be adept at asking appropriate questions to uncover patterns of behaviour and understand the impact on the complainant.
Evidence gathering might involve reviewing communication logs, witness testimonies about observed behaviours, and assessing the overall workplace culture. It’s crucial to distinguish between isolated incidents and a pattern of unacceptable conduct.
The outcome of such complaint investigations often involves not only addressing the specific allegations but also implementing measures to prevent future occurrences to create a respectful environment.
How are complaints investigated in Healthcare?
In the healthcare sector, complaint investigations related to potential clinical negligence require a different lens. These investigations into patient safety often involve reviewing complex medical records, interviewing clinical staff with specialised knowledge, and potentially seeking expert opinions.
The focus extends beyond individual conduct to identifying potential systemic failings or areas for improvement in patient care pathways. The language used in these complaint investigations must be precise and medically accurate, and the process must align with relevant healthcare regulations and guidance from bodies like the Parliamentary and Health Service Ombudsman (PHSO). Learning from these investigations is critical for enhancing patient safety and trust in healthcare services.
The PHSO published a review into the quality of complaint investigations where serious or avoidable harm had been alleged. The PHSO reviewed 150 complaints and spoke to 170 NHS complaints managers from across the country.
The PHSO found that:
- the process of investigating is not consistent, reliable or good enough
- staff do not feel adequately supported in their investigatory role
- there are missed opportunities for learning.
The PHSO found that 40% of investigations it reviewed failed to identify failings or causes of failings. In 73% of the investigations, the PHSO found failings where the trust did not.
The review highlights a lack of consistency in investigation methods. The methods appear to be left to the investigator to decide as evidenced by almost a fifth of investigations lacking reference to medical records, interview transcripts or statements.
Ultimately, this often leads to families being left with an unacceptable experience. The PHSO found that in 41% of cases the trusts did not provide complainants with an adequate explanation of what happened and why.
To improve we need to learn and address system failures. Knowing how to investigate a complaint well can help families, improve patient care and improve staff experiences.
Navigating the Human Element: Sensitivity in Complaint Investigations
Complaint investigations are not purely factual exercises; it’s important to remember that ‘there’s a person in there!’.
Investigators must be equipped with the skills to handle these sensitive situations with empathy and professionalism. This includes active listening, clear communication about the process and timelines, and ensuring a respectful and supportive environment for all parties involved.
Recognising the emotional impact on both the complainant and the respondent is crucial for building trust in the complaint investigation process and facilitating a constructive resolution, regardless of the outcome.
If you would like to learn more complaint investigations then please book a free consultation or contact our Ed Marsden on 020 7494 5670 or [email protected].
