How to effectively run private investigations
Tabitha Cave and Alice Reeve, partners at law firm VWV, explore the effective running of school investigations
Some of you may recall the Dire Straits song of the same name of 1982 and share Mark Knopfler’s pessimism about the very nature of private investigations. Even if you’ve never heard of it, it is rare to find people who are evangelical about investigations, yet they remain a basic tool for the effective running of any school.
This article examines some of the important considerations when embarking on an investigation and provides some top tips.
1. What is the purpose of the investigation?
In order for an investigation to be fair, there will need to be clarity and effective communication about the purpose of the investigation and the procedural framework to apply.
We recommend that schools start by considering the purpose of each investigation and the relevant regulatory framework. It is common for schools to commission investigations in an employment context, following a parental complaint, or a pupil one, but concerns which may warrant investigation can also be made in a myriad of other circumstances, such as concerns about current governance, the historic management of issues, or association with third-party organisations.
At VWV, we recommend that careful consideration is given to the nature of the issue being raised and the application of relevant legal or regulatory duties and internal documents which may mandate reporting obligations, third-party involvement and/or next steps.
2. Who should undertake the investigation?
Most investigations can be undertaken by school staff, but some may warrant or require external investigation. Decisions about this should involve the consideration of factors such as the complexity of the issues, the amount of material and witnesses, the possible need to maintain appeal or review mechanisms and the possible outcomes.
In all cases, the investigation should be conducted by someone who has the training, skills and resources to do what is required. They should also be unconflicted, i.e. not themselves involved in the events being investigated.
Even if they are not directly involved in the matters complained of or their management of them, consideration should be given as to whether there is a perceived conflict, for example by their personal proximity to the matters to be considered, or that of their family or friends.
We recommend that schools start by considering the purpose of each investigation and the relevant regulatory framework
In a staff disciplinary context, the ACAS Code of Practice talks of the importance of a separation of roles between the investigating officer, the disciplinary decision-maker and the individual(s) hearing any appeal.
Although this is not always required, the possible benefits in separating out the responsibility for gathering the facts and making a decision on them should be considered, especially where the potential consequences of the investigation are serious.
3. What are the terms of reference?
It is important that the nature and scope of the investigation are considered at the outset and that the investigator agrees to this. It is always helpful to have written terms of reference (this could be just in an email or letter) to ensure that there is clarity, although it is not mandatory.
In some cases, the investigator will be responsible for collecting and collating the relevant evidence, but in others they will also be expected to make findings of fact (generally on the civil test, namely the balance of probabilities), decisions on the matters being investigated and/or recommendations for improvement.
4. How does a school investigation tally with the involvement of external agencies?
In circumstances involving crime or safeguarding concerns, contact with the police and/or local authority should be made before embarking on an internal investigation. Schools should only progress their own investigation when relevant agencies have confirmed that they can do so in order to ensure that they do not prejudice a potential criminal investigation.
This does not mean that schools will always need to wait for the conclusion of criminal proceedings before undertaking their own investigation. This will depend on the circumstances of the case.
5. Should you suspend the person complained of during the investigation process?
Again, this will be fact-specific.
In an employment context, the recent case of Lambeth LBC v Agoreyo held that the proper test for suspension is whether there is ‘reasonable and proper cause to suspend’. Careful consideration should be given to the management of risk, what a school is seeking to achieve by suspension and whether suspension is a reasonable way of achieving that aim.
Suspensions should be kept under review. The school will have a continued duty to support the person suspended and this will usually include a duty to pay them if they are a member of staff or educate them if a pupil. In either circumstance, the school should be careful about communication to the school community to minimise the risk of undermining the position of those under investigation.
6. What evidence is needed?
This will depend on the terms of reference and what facts need to be established. The investigator should undertake a reasonable and proportionate investigation – too lengthy a process and/or report can be as problematic as one that it too superficial. The investigation should be even-handed and not just a search for evidence to prove a particular set of facts.
An investigation will usually involve collecting relevant documents and speaking to key witnesses before speaking to the person who is under investigation. Where witnesses are to be interviewed, they should be interviewed individually to avoid allegations of collusion. Consideration should be given as to whether witnesses should be offered a right to be accompanied.
Similar factors should then be considered in relation to putting matters to the person who is the subject of the investigation and to the provision of relevant information to them. Care should be taken to explain the process to be followed, the nature of the concerns and the evidence in support of them and to ensuring that they have a right to make representations about the matters complained of.
Consideration should also be given to anonymising documents so that third parties cannot be identified.
7. Will the investigation report be disclosable?
There may be some circumstances where investigation reports are protected from disclosure because they are confidential or legally protected from disclosure by way of privilege.
However, as the status of reports and their disclosure can be subject to challenge, whether on complaint, by subject access or freedom of information request or by litigation, we suggest that in most cases, investigation documents and reports are prepared on the basis that they will be disclosable, at least to the complainant and individuals who are the subject of the complaint and if the intention is otherwise, that consideration is given to this at the outset.
Robust and fair investigations underpin all subsequent decision-making and failure to investigate issues properly poses a risk of challenge, delay and legal and reputational risk.
For further guidance on these and related issues please contact Tabitha Cave or Alice Reeve at leading education law firm VWV.
Tabitha can be contacted by calling: 0117 314 5381 or emailing: firstname.lastname@example.org. Alice can be contacted by calling: 0117 314 5383 or emailing: email@example.com.
VWV is running a training seminar in London on 13 June aimed at all those who are involved in undertaking investigations in their role within a school. To find out more about the seminar, please visit https://bit.ly/2Z304Tc or call 0117 314 5294.