Anyone who takes on the role of investigating officer, whether it’s into grievances raised by employees or disciplinary matters, should read Adam Tolley KC’s investigation report produced for the Prime Minister, because it is a master class in how the findings of an investigation ought to be presented.
Firstly, he sets out what his terms of reference were, which is particularly important for those who are appointed externally by an organisation – often when I am acting for the employee, I ask about terms of reference and am shocked by how often organisations have not set out the scope of an investigation. Also, if data is being shared with a third party as part of the investigation, then the Data Protection implications of this needs to be addressed somewhere?
The Report commences by setting out the relevant policies and what they say. Obviously as a bullying investigation, the definition of bullying is set out. In this particular example, he has referred to case law reports within the civil service, but an employer is likely to have a policy setting out what they regard as bullying or if they don’t then there is always the ACAS definition to be referred to.
The Report describes the methodology followed. Tolley goes to lengths to explain the submissions made by Dominic Raab, both verbally and in writing and addresses his representations and how he has factored in those things to his decision-making process. For example, representations about complaints not having been made contemporaneously with events some years down the line or the availability of direct documentary evidence. When you read the explanation as to his thought process, you are able to understand that he has weighed up considerations and to understand decisions he has made along the way. This has the benefit of being transparent, reassuring the employee, in our case, who is at the centre of the investigation, that things have been dealt with fairly. Reports that lack this level of detail are often criticised by the subject, as it will appear that certain things have not been taken into account when actually they might have been.
Adam Tolley also goes into the background first with a detailed description of the Deputy Prime Minister’s working style. The advantage of setting out this background is that not only does it give another opportunity to show fairness and balance, it is useful for anyone reading the report outside of an organisation to understand the context. This will be potentially important if there is an appeal to be dealt with or, in our case, an Employment Tribunal.
The Report is forensic in that it breaks down complaints or allegations into constituent parts and addresses each element in turn. In taking that approach, he is able to sift through those items for which there is evidence and items where there is not, and that gives you a feeling of balance in that he has acted fairly, only finding fault where there is evidence to suggest there was, for example, when it comes to physical gestures like table slamming and shouting and swearing, Dominic Raab was not found to have acted inappropriately. It also enables us to see that each aspect has been covered.
The Report looks at the history – in a disciplinary context, this might be previous disciplinary warnings or whether any informal meetings have ever been held about conduct previously. Here there were certain communications which sought to alert the Deputy Prime Minister to the existence of an issue with his behaviour but those communications did not use the word ‘bullying’.
Where he talks about witnesses, Tolley shows his thinking in terms of the reliability of those witnesses and whether or not they may have had any motive to complain – this is often useful in a Report to articulate why, for example, a particular witness should be believed or not. In this particular case, there is a discussion around so called “snowflake” reactions and the resilience levels that can be expected from civil servants. You would expect any investigating officer to be able to talk about the extent to which they felt witnesses were acting in good faith and in bullying cases in particular, perhaps commentary on the impact the experience had on their health. Adam Tolley recognised the impacts communicated to him were genuinely experienced and this will be the case where we are not focused on the intention of a protagonist but rather the impact that behaviour has had (harassment cases for example).
The Report discusses confidentiality and how that has been addressed and its relevance to the findings in the Report. This is particularly important if the identity of individuals is going to be protected, for example, in harassment cases. In the Tolley Report, because he knew it was going to be published to the public, he has had to work hard to protect the confidentiality of individuals (only two people are named, with their consent) and that has resulted in some detail being omitted and kept between him and the Prime Minister. That would obviously differ in an employment context where the detail and the information would be included in the Report and it’s appendices, although occasionally a decision may be taken to anonymise witness statements and to omit details which would betray the identity of the witnesses.
We can all learn from this example, quite apart from the debate around what is or isn’t bullying. A link to the actual report can be found in the following link:
Refreshing Law Ltd
21 April 2023