Procedural 0
Claire Davies, Senior HR Investigator

Worker Protection Act 2023 · ACAS Code · Module 5

The Investigation

What happens in an investigation room shapes what happens in a tribunal room. The record is everything.

You are Claire Davies, Senior HR Investigator. Kelmar Group has retained you on a 15-day mandate to investigate the formal grievance filed by Tom Elliott against Diane Pritchard, Regional Director. You are external because Diane's seniority rules out internal investigation. The report you produce will sit on Kelmar's reasonable-steps file, will be read by the respondent, and — if this reaches tribunal — will be read by a judge.

Kelmar Group · 25–30 minutes

§1Day 1 of 15

Monday, 09:00

Kelmar HQ, Manchester

A small interview room at Kelmar HQ. A wooden table, two chairs on one side and one on the other, a water jug, five folders stacked on the corner. Editorial framing. No dialogue.

Lena Forsyth, General Counsel
§2Terms of reference

Monday, 09:30

Lena Forsyth“Claire — thank you for coming in. The mandate is simple. Investigate the allegations in Tom Elliott's grievance. Make findings, per allegation, on the balance of probabilities. Separate findings from any recommendations. Fifteen working days.”
Lena Forsyth“The scope is the six allegations as pleaded. It is not a review of Rachel's handling in week one, it is not a culture audit, and it is not a performance review of Ms Pritchard. If the investigation surfaces concerns outside scope, flag them to me; do not chase them.”
Claire Davies“Understood. First question — access to prior HR records on either party?”
Lena Forsyth“You have what is in the file. If you need more, ask. I'll document the request either way.”

The mandate is clean. The first material decision of the investigation is not a question of truth — it is a question of order.

§3Decision — Investigation order

Monday, 10:15

In what order do you schedule the four interviews?

Tom Elliott (complainant), Diane Pritchard (respondent), Stuart Henshaw (line manager witness), Rachel Adeyemi (HRBP witness). Eight working days available.

The ACAS Code does not prescribe an order. Procedural fairness, evidential coherence, and the respondent's right to be heard on specific allegations combine to give one strong order, two defensible ones, and one weak one. Each interview informs the next. The order you choose is itself a procedural record.

§What happened next

Complainant first, respondent last

Tom on Tuesday, Stuart and Rachel on Thursday and Friday, Diane the following Wednesday. When Diane walks in she is asked to respond to specific allegations framed by the evidence you have gathered — not to a generic summary.

For Tom: his account goes on record before it can be coloured by other interviews. Procedurally clean.

For Diane: the specific allegations put to her are evidenced, dated, and precise. She can address each on its own facts — which is what natural justice requires.

For the organisation: the ACAS Code describes this sequencing almost verbatim as procedurally clean.

Complainant-first, respondent-last

The sequencing is about evidential load-bearing. The complainant's account frames the allegations; witnesses corroborate or qualify; the respondent's interview is the moment at which specific, evidenced allegations are put to them for a specific, evidenced response. Reversing this order denies the respondent the thing that protects them most — precision.

§What happened next

Respondent first — the frame inverts

Diane walks into Tuesday morning's interview and is asked to respond to Tom's written account before any witness has been interviewed. She answers at length, locking in a detailed counter-narrative. By the time Tom is interviewed two days later, Diane's version is the frame every subsequent question is implicitly testing.

For Tom: the investigation is now framed by the respondent's narrative. He will be interviewed against her account, not the other way round.

For Diane: her counter-narrative is on record before she has had to account for specific evidenced facts. The absence of documentary challenge at this interview protects her position.

For the organisation: the investigation's procedural weight is compromised. The Burchell standard of ‘reasonable investigation’ is weakened.

Respondent-first as procedural weakness

Respondent-first interviewing is not unheard of — but it is contextually weak in a harassment investigation where the complainant's evidence carries the initial load. Natural justice protects the respondent's right to be heard on specific allegations; interviewing her before those allegations are fully evidenced gives her less, not more, protection.

§What happened next

Witnesses first — defensible variant

Stuart on day 2, Rachel on day 3, Tom on day 5, Diane on day 8. When Tom walks in on day 5 he is interviewed with witness accounts already on the record — which both sharpens follow-up questions and lets you test consistency across accounts.

For Tom: a defensible order. His interview is sharper because witness accounts are in first.

For Diane: the final interview is well-evidenced; specific allegations can be put precisely.

For the organisation: a less common but procedurally defensible order. The ACAS Code permits any order that meets the fairness tests. Scores slightly below complainant-first because witness recall of second-hand disclosure is typically weaker than first-hand account.

Witness-first as a defensible variant

There are scenarios where witness-first makes sense: where the complainant is unavailable, where documentary evidence needs witness authentication first, or where witness accounts may be at risk of contamination if delayed. On this fact pattern, none of those apply — but the order is still procedurally defensible.

§What happened next

Parallel scheduling — calendar over coherence

Everyone interviewed in the same week. You synthesise on Friday. The schedule works; the sequencing benefit is gone. Stuart, interviewed Tuesday, has not yet had the benefit of hearing Tom's account framed in your follow-ups. Diane's interview Friday is informed by Tom's Wednesday — but not by the witnesses, whose accounts are not yet transcribed.

For Tom: his interview occurs at roughly the normal point, but without the sharpening effect of waiting for witnesses.

For Diane: interviewed last in the week, which is sequencing-sound, but at the cost of evidence synthesis quality.

For the organisation: the parallel schedule saves calendar time at the cost of evidential coherence. A defensible choice where time pressure is severe; suboptimal where 15 days is the mandate.

Parallel scheduling versus sequential

The ACAS Code does not prescribe sequential interviews; it prescribes fair ones. Parallel scheduling is not a breach. It is, however, the scheduling pattern most likely to produce a report with follow-up gaps.

Tom Elliott, complainant
§4Tom's interview — the room

Tuesday, day 2

Claire Davies“Tom — thank you for coming. I'm going to set out the ground rules. The interview is recorded and transcribed. I will stop and ask you to clarify if I need to. You can take a break at any point. Is that alright?”
Tom Elliott“Yeah. Yes. Thanks.”
Claire Davies“I've read your written account. I want you to walk me through it in your own words. Start wherever makes sense to you.”
NarratorTom speaks for forty-three minutes. The transcript that follows is eleven pages. Six phrases carry particular procedural weight.

You are about to highlight the transcript. Six phrases are visible. Each needs a category tag: direct allegation, corroborating detail, contradiction with written statement, hearsay, opinion or character, or off-topic.

§Activity — Transcript weight (Tom)

Six phrases. Six categories. Sort by procedural weight.

The investigator's craft is not deciding who is telling the truth. It is sorting each utterance into what it can do evidentially. Most weak reports treat every sentence as equally weighty — and collapse under cross-examination for it.

Categories: Direct allegation · Corroborating detail · Contradiction · Hearsay · Opinion / character · Off-topic. Over-tagging plain facts as ‘direct allegation’ carries a false-positive penalty.

Tom's interview · transcript pages 4–7

Stuart Henshaw, store manager
§5Stuart's interview

Thursday, day 4

Claire Davies“Stuart — the same ground rules as before. Recorded, transcribed, you can take a break.”
Stuart Henshaw“Yeah. Yes. Thanks. I — yeah.”
Claire Davies“When did Tom first speak to you about this?”
Stuart Henshaw“Monday night. After close. He came into the office and said he needed to tell me something. He was — you could tell, straight off. I'd never seen him like that.”
NarratorStuart speaks for thirty-one minutes. He is nervous, sometimes over-explains, and his account is clear on what Tom told him and unclear on details of the offsite itself — he was not there.

Five phrases from Stuart's interview need tagging. The weight distribution is different from Tom's — Stuart's direct observation is Monday conversation, not Friday night.

§Activity — Transcript weight (Stuart)

Five phrases. Same category set.

Stuart's account is a blend of direct observation (Monday conversation), second-hand information (Friday offsite), and opinion. The category sorting matters more here because the temptation to over-weight any of it is high.

Stuart's interview · transcript pages 2–4

Diane Pritchard, respondent
§6Diane's interview — the Teams message

Wednesday, day 8, 10:47

Claire Davies“Ms Pritchard — thank you for coming in. The same ground rules. Recorded, transcribed.”
Diane Pritchard“Of course. I'd rather we got on with it — I've got a regional review on Friday.”
Claire Davies“Your formal response states that on the Friday night in question you retired to your room at 22:00 and did not see Tom Elliott again that evening.”
Diane Pritchard“That's right.”
NarratorYou have, in front of you, a Teams message from Diane to Tom sent at 23:04 that Friday reading: ‘You still downstairs? Thought you'd headed up. Pop by if you want a nightcap — Room 412.’ You have read it three times this morning. Diane has not yet seen it put to her.

The contradiction is live, documentary, dated, and on Kelmar's Teams server. How you handle the next ninety seconds will define the interview.

§7Decision — Handling the contradiction

Wednesday, day 8, 10:47

What do you do with the Teams message?

The investigator's task when documentary evidence contradicts a witness is to present the evidence, ask for a response, and record the response — nothing more.

§What happened next

Calm presentation

Claire Davies“Ms Pritchard — I have a Teams message dated that evening at 23:04 from your account to Tom's. Could you read it and tell me how you'd like to address your earlier answer.”
Diane Pritchard“[reads the message; pauses for six seconds] Yes. I — I had forgotten. I did message him. I was in my room by then. The message was just — a courtesy. I can walk you through what I was thinking.”
Claire Davies“Please do. Take your time.”

For Tom: the contradiction is now in the investigation record, with Diane's explanation also on record.

For Diane: her right to be heard on specific evidence is preserved.

For the organisation: the handling meets the Burchell ‘reasonable investigation’ standard precisely.

Presenting documentary contradiction

The investigator's task when documentary evidence contradicts a witness is to present the evidence, ask for a response, and record the response — nothing more. Aggression removes the witness's ability to explain; silence denies the witness the chance to explain. Calm presentation preserves both the evidence's weight and the respondent's rights.

§What happened next

Aggression — the suspension

Claire Davies“You've just told me you went to your room at 22:00. I have a Teams message from you at 23:04. So which is it?”
Diane Pritchard“I'm not going to answer that in that tone. My solicitor will be in touch — I think we need to pause.”
NarratorThe interview suspends at 10:52. Resumes six days later with Diane's solicitor present. The rest of the investigation is conducted against a backdrop of procedural challenge.

For Tom: the investigation is now delayed, legally contested, and any finding adverse to Diane will be challenged on the basis of investigator bias.

For Diane: her position is strengthened — the investigator's handling gives her grounds to challenge the process.

For the organisation: the procedural weight of the report just dropped materially. Uplift exposure rises if this reaches tribunal.

Aggressive questioning as procedural breach

‘Hostile examiner’ is not a technical legal term — but the behaviour it describes is the specific thing a respondent's solicitor will cite as evidence the investigation was not impartial. Natural justice includes the rule against bias; investigator behaviour is part of that rule.

§What happened next

Silent contradiction

You move on. The interview completes at 12:20. Diane leaves believing her account has been accepted. Your report, filed eleven days later, cites the Teams message as a contradiction and bases a specific finding on it. Diane sees the report for the first time on appeal.

For Tom: a finding based on a contradiction Diane was never given the chance to address is vulnerable on appeal.

For Diane: her right to be heard on a piece of evidence that materially affects a finding has been breached.

For the organisation: appeals on process regularly succeed independent of the merits.

The right to be heard

Natural justice requires that a person be given the opportunity to respond to evidence that is being used against them. Documenting a contradiction in the investigator's private notes, then citing it in a report, without putting it to the respondent, is one of the specific procedural failures that reliably overturns a finding on appeal.

§What happened next

Tactical clarification

Claire Davies“Ms Pritchard — could you tell me, in as much detail as you can, your movements between 22:00 and midnight that Friday evening?”
Diane Pritchard“I was in my room by 22:00. I think I messaged a couple of colleagues. Watched a little TV. Slept.”
Claire Davies“You mention messaging colleagues. I have a Teams message from your account at 23:04 to Tom. Could you read it and tell me how it fits with what you've just said.”

For Diane: she is given the chance to clarify in her own words first. When the document is put to her, she has already framed her recollection.

For the investigation: tactical but procedurally fair. The witness is not cornered; she is invited to volunteer detail that either resolves the apparent contradiction or confirms it.

For the organisation: a defensible, careful handling. On balance, a solid procedural choice.

Tactical follow-up versus ambush

There is a defensible technique in which an investigator invites detailed clarification before presenting contradictory documentation. The line between this and ambush is whether the witness is given the chance to address the document in their own words once presented.

§Activity — The hot seat (reversed)

Four rounds. The respondent is questioning you.

The role is reversed: the respondent is questioning the investigator. This happens in real investigations when the respondent is senior, legally advised, or both. Holding the line is the skill being tested — not winning the exchange.

Each round: pick the response. Score is based on procedural accuracy under pressure.

§8Drafting the report

Day 13 of 15

NarratorThree interviews, two witness accounts, a Teams message, a contemporaneous note from Rachel, and twelve pages of handwritten notes. The mandate closes in two working days. The draft on your screen is titled ‘Findings of Investigation — Elliott v Pritchard.’

The report's structure is the final procedural decision of the mandate. It determines how the findings land with Kelmar, with Diane, with Tom, and — if this goes further — with a tribunal reading it three years from now.

§9Decision — Report structure

Day 13

How do you structure the final report?

The investigator's role ends at the finding. Per-allegation findings on the balance of probabilities is what the Burchell test anticipates.

§What happened next

Per-allegation findings, recommendations separated

The report goes to Lena Forsyth on day 14. Six allegations, six specific findings, civil-standard reasoning for each. The recommendations section proposes procedural next steps (disciplinary hearing, with options open) without naming a specific sanction. Lena reads it twice and signs it off for onward process.

For Tom: each allegation has an individual, reasoned finding.

For Diane: findings are at the right civil-law standard and specific enough for her to understand, appeal if she chooses, and respond to at a disciplinary hearing.

For the organisation: a report that meets the Burchell ‘reasonable investigation’ standard precisely, separates investigator role from decision-maker role per the ACAS Code.

Per-allegation findings on the civil standard

Workplace investigations operate on the balance of probabilities — more likely than not. Single-verdict structures blur which allegations were supported and which were not. Per-allegation findings are not just clearer — they are what a tribunal will read first.

§What happened next

Single verdict — the wrong standard

Your report delivers a single summary finding. Kelmar's disciplinary panel cannot tell which specific allegations were supported. The panel instructs a supplementary clarification; two days are added to the process. Diane, on receiving the report, files an initial appeal on the basis that the finding does not set out what she is found to have done.

For Tom: the report is directionally correct but unusable without re-work.

For Diane: the generic finding is harder to accept as fair — she cannot see specifically what she is found to have done.

For the organisation: the single-verdict structure imports a criminal-standard framing onto a civil-standard process. ERA 1996 s98 asks only whether the employer acted reasonably.

Verdicts versus findings

Workplace investigations are not trials. Findings are on allegations, not on persons, and are on the balance of probabilities, not beyond reasonable doubt. Single-verdict reports read as criminal-court drama transplanted into HR.

§What happened next

Investigator recommending sanctions

Your report includes per-allegation findings and a named recommended sanction: dismissal. The disciplinary panel, which is meant to make that decision, now opens its first meeting with an investigator's recommendation already on the record. The panel's independence is visibly compromised. Diane's eventual appeal leans heavily on this point.

For Diane: her right to a fair hearing before the decision-maker is weakened.

For the organisation: the investigator-role/decision-maker-role separation the ACAS Code treats as foundational has been collapsed.

For Tom: a successful appeal on procedure would mean the process has to be re-run — or the dismissal cannot stand — even if the underlying findings remain sound.

Investigator recommending sanctions

The ACAS Code separates the fact-finding function from the decision-making function for a reason: the decision-maker should approach the sanction question with an open mind. An investigator who names a sanction in the report has pre-empted the decision-maker.

§What happened next

Findings only — the minimum defensible position

Your report delivers per-allegation findings with full reasoning and no recommendations section at all. The disciplinary panel receives a clean findings document and builds its own procedural path forward. Kelmar's HR team asks on day 15 whether the report might include a ‘next procedural steps’ paragraph; you decline, citing the scope of the mandate.

For Tom: clear findings, usable directly at the disciplinary stage.

For Diane: a report that sets out what has been found and leaves the sanction question to the correct forum.

For the organisation: a defensible minimum position. Slightly less useful than c3a because the procedural next-steps guidance is absent, but not incorrect.

Findings without recommendations

There is no requirement that an investigation report include a recommendations section. The minimum defensible report simply delivers findings. Both are procedurally sound.

§10Three decisions, fifteen days, one report

The record is everything.

Three decisions across fifteen working days. Two transcripts highlighted. One hot-seat test held. A report that either anchors Kelmar's reasonable-steps defence or weakens it — not on the basis of what was found, but on the basis of how the finding was arrived at.

Your procedural score

0
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What to carry forward

1. Order is a procedural record in its own right. Complainant-first, respondent-last is the anchor sequence; other orders are defensible but carry specific evidential costs.

2. Evidence has weight classes. Direct allegations, corroborating details, hearsay, opinion, and off-topic material are not equivalent. The transcript highlighter is the craft layer — what separates a report that survives cross-examination from one that collapses under it.

3. Procedural fairness under challenge is the test. The hot seat is what a respondent's solicitor sounds like. Holding ground without becoming defensive, conceding on notice, referring questions upward where appropriate — this is the skill that protects both the investigator's independence and the respondent's right to be heard.

4. The investigator's role ends at the finding. Per-allegation findings on the balance of probabilities is what the Burchell test anticipates. Recommending sanctions collapses two distinct procedural roles; delivering verdicts imports the wrong standard.

How fifteen days shaped the record

Claire Davies (investigator)

Tom Elliott (complainant)

Diane Pritchard (respondent)

Lena Forsyth (Counsel)

Kelmar Group (employer)

Module 6 opens eighteen months later. The report you just produced is Exhibit J in the tribunal file. Jo Merrick and Lena Forsyth are reading it for the last time before the hearing.

Continue to Module 6 → Replay Module Course Home