Why Some Investigations Require Particular Care

Most workplace investigation principles apply universally: the need for independence, fair process, clear allegations, rigorous evidence gathering and transparent reasoning. But certain categories of investigation present distinctive challenges that require specific knowledge, skill and approach. Getting these wrong carries heightened risk for the organisation, the individuals involved and the credibility of the investigation itself.

This chapter draws on The Workplace and Corporate Investigator’s Handbook to address four categories of investigation that require particular care: dishonesty, theft and fraud; sexual misconduct; bullying and harassment; and investigations involving vulnerable or neurodivergent witnesses, cultural or language barriers, and power imbalance considerations.

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Dishonesty, Theft and Fraud

Investigations involving dishonesty, theft or fraud require a more structured, analytical and methodical approach than many other types of workplace inquiry. These cases often rely heavily on documentary evidence rather than witness recollection, and they may involve complex patterns of behaviour over time rather than a single incident.

A key consideration in dishonesty investigations is the legal test for dishonesty set out in Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67. While this is a civil and criminal law test rather than a purely employment law test, it provides a helpful framework. The test has two parts. First, the investigator must establish the individual’s actual state of knowledge or belief about the facts at the time. This is subjective. Second, the question becomes whether that conduct, given the individual’s understanding of the facts, was honest or dishonest by the standards of ordinary decent people. This is objective. In practice this means exploring what the person believed they were doing, and then independently assessing whether that behaviour would generally be considered dishonest.

Common defences include claiming administrative error, misunderstanding, assumed permission, or that the practice was widespread. Investigators must carefully test these claims by cross-checking timelines, documentation, access records and consistency with policies. Even a small-value fraud may indicate deeper control failures and create significant reputational and regulatory risk, particularly in regulated sectors. Where criminal conduct is suspected, investigators should consider whether and when to pause the investigation and involve external authorities.

Pattern analysis is often central to these investigations. Dishonesty frequently emerges through patterns rather than isolated incidents: repeated anomalies in records, unusual transaction timing, consistent overclaiming, or behaviour that changes noticeably under scrutiny. Where patterns point toward wrongdoing, investigators must document each step of their reasoning clearly, because decision-makers and tribunals expect evidence-based conclusions on this type of allegation. External specialists, including digital forensic experts or financial analysts, are often necessary and should be involved early where their expertise is required.

Sexual Misconduct

Sexual misconduct investigations are among the most sensitive and consequential that HR professionals and investigators will conduct. They typically involve serious allegations, significant power dynamics, and the potential for profound personal impact on all parties involved. They require a level of skill, experience and care that goes beyond what is needed for most other types of investigation.

The investigator must approach these matters with particular sensitivity to the impact of trauma on memory and behaviour. Trauma-informed practice recognises that survivors of sexual misconduct may not present in ways that appear consistent or coherent to an untrained observer. Delayed disclosure, inconsistent recall of peripheral details alongside clear recall of the core event, emotional distress or apparent detachment, and changes in account over time are all common features of genuine trauma responses and must not be treated as indicators of unreliability.

At the same time, fairness to the subject requires that allegations are thoroughly tested against the evidence. Sexual misconduct investigations must balance sensitivity to the complainant with rigorous and impartial assessment of all the evidence. They are not investigations where the complainant’s account is presumed to be accurate, but they are investigations where the specific challenges of these allegations must be understood and accommodated.

Investigators in these cases should have specific experience in conducting sexual misconduct investigations. The stakes are too high, and the challenges too specific, for a generalist approach to be adequate. Senior leadership and board-level matters involving sexual misconduct require particular independence and specialist expertise and should almost always be conducted by an external investigator.

Bullying and Harassment

Bullying and harassment investigations present their own distinctive challenges. The conduct complained of is often a pattern of behaviour rather than a single incident. Individual episodes may seem relatively minor when viewed in isolation but have a cumulative impact that is significant. Witnesses may be reluctant to give evidence because they fear retaliation or because they have witnessed the same pattern themselves and are concerned about what giving evidence might mean for them.

A central challenge is the distinction between management action and bullying. Many bullying allegations arise in the context of performance management, absence management or workplace conflict. Not all management action that an employee experiences as oppressive or unfair amounts to bullying. Investigators must assess the conduct objectively against the relevant legal and policy framework, rather than simply accepting the complainant’s characterisation or assuming that management had legitimate justification.

Investigators should be alert to the risk of retaliation against complainants and witnesses. Bullying allegations frequently generate counter-allegations, sometimes genuine and sometimes retaliatory. Both must be assessed on their merits. The fact that a counter-allegation is made shortly after the original allegation is relevant context but is not in itself evidence of bad faith.

Where bullying allegations involve senior staff, including managers, directors or board members, the stakes are particularly high and the investigation should almost always be external. Power dynamics affect who feels able to give evidence and how openly they can speak. An experienced external investigator with the gravitas to conduct senior-level interviews fairly and firmly is essential in these cases.

Vulnerable and Neurodivergent Witnesses

Workplace investigations do not take place in a vacuum. They involve real people with varying levels of resilience, different communication styles, and different vulnerabilities. Vulnerable witnesses include not only those with formal disabilities but also those experiencing acute distress, those who are junior in the organisational hierarchy, those from cultural backgrounds where challenging authority carries particular risk, and those whose neurodiversity affects how they communicate and engage with formal processes.

Neurodivergent witnesses, including those with autism spectrum conditions, ADHD, dyslexia or other conditions, may present and communicate differently in ways that can be misread as evasiveness, inconsistency or disengagement. Investigators must understand these differences and adapt their approach accordingly. This may involve adjusting the interview format, providing more detailed advance notice of questions, allowing longer response times, or making other reasonable adjustments to enable the witness to give their best evidence.

Where witnesses have severe vulnerabilities, including residents or service users in care settings, those with severe learning disabilities, or individuals experiencing acute mental health crises, particular care is needed around both the decision whether to interview them and the approach taken if an interview is conducted. In some cases, alternative forms of evidence gathering may be more appropriate than a direct interview.

Cultural and Language Barriers

Investigations involving parties or witnesses from different cultural backgrounds, or where English is not a first language, require additional care to ensure that the process is genuinely fair and that evidence is accurately understood. Language barriers can affect the quality of witness accounts, the comprehension of allegations, and the ability to engage fully with the investigation process.

Where language barriers exist, professional interpretation should be used rather than relying on colleagues or managers. The use of untrained interpreters can introduce bias, affect confidentiality and compromise the accuracy of the record. Cultural differences in communication style, attitudes to authority and willingness to challenge senior figures must also be understood and accommodated. What appears in one cultural context as evasiveness or implausibility may in another context be a normal and respectful way of communicating difficult information.

Power Imbalance Considerations

Power imbalance pervades many workplace investigations. The subject may be significantly more senior than the complainant. Witnesses may feel unable to give frank evidence because of the subject’s organisational power. The complainant may feel that the investigation process itself is weighted against them.

Investigators must be alert to these dynamics and take active steps to manage them. This includes ensuring that witnesses understand their right to speak candidly and are protected from retaliation, that the investigation process is explained clearly to all parties so that those with less experience of formal processes are not disadvantaged, and that the investigator’s own conduct does not inadvertently reinforce existing power imbalances by, for example, treating the evidence of senior witnesses as inherently more credible than that of junior ones.

Further Reading

This chapter is part of the Workplace and Corporate Investigations Knowledge Guide. The full treatment of particular types of investigation, including detailed analysis of each category and worked examples, is available in The Workplace and Corporate Investigator’s Handbook.

Related chapters in this guide:

• Common subjects for investigation
• Evidence, credibility and decision-making
• Preparing for and conducting interviews
• Specialist and senior-level investigations
• When police or regulators may need to be involved

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Important disclaimer: This page is provided for general information and educational purposes only and does not constitute legal advice. You must not rely on anything on this page in respect of your legal rights or obligations. Always seek independent legal advice before taking or refraining from taking any action. The author accepts no responsibility for any decisions made or outcomes arising from use of this material. If you would like specific advice, contact me here.