An increasing number of ASCL members are finding themselves in the role of 'investigator' as formal and semi-formal investigations become more common in schools and colleges. Richard Bird gives advice on how to conduct an investigation.
The introduction of statutory grievance and discipline processes has increased the need for educational institutions, like other organisations with employment responsibilities, to investigate properly before acting on complaints, concerns or grievances.
There is a problem, though, with finding enough pairs of hands to do it. Large post-16 institutions and some schools may be able to employ an in-house human resources expert who can act as investigator.
However, in many schools it will fall to the deputy or assistant head. Sometimes one also finds an associate acting as an 'independent investigator'.
This is not an easy task, and it is one which many members may well feel barely qualified to do. But it must be done well, or there can be dangers both to the institution and to the individual.
An incomplete investigation can lead to a case being lost at employment tribunal. Equally a complaint from a parent that is inadequately investigated can lead to intervention by the local authority.
A negligent investigation may lead to a grievance against a member individually and there is the possibility that it may then lead to a charge of unprofessional conduct at the GTC. An investigator who is being paid for the work needs to check professional liability insurance.
The investigating officer should not be the one hearing the case during a disciplinary panel nor making the argument for the prosecution. The most he or she can do during the panel hearing is to present the information objectively.
What not to do
Some of the most common mistakes involve the unquestioned inclusion of second hand (hearsay) evidence. Hearsay evidence may be admissible but there needs to be a note of caution when it is presented. Other blunders involve interviews consisting of leading, rather than objective, questioning, eg "Can you confirm my impression that he is guilty?"
One of the most serious faults is the failure to investigate specific charges. There should have been specific reasons for the investigation; the enquiry should be limited to these, rather than becoming a 'fishing expedition' for possible additional faults.
To conduct a proper investigation which will meet proper standards, the first step is to start with specifics and focus the investigation on them.
Unbiased, objective, detailed accounts should be asked from all witnesses.
They should not be prompted in a way that will undermine the credibility of their evidence. Evidence should be meticulously recorded.
Second hand evidence should be identified as such. Every effort must be made to obtain more reliable evidence and to cross-reference.
Anyone who is being investigated must be given every opportunity to give an explanation of any evidence adduced against them.
The final report needs to address itself to the issues or problems and the evidence must be arranged so as to illuminate those charges even-handedly. Where necessary it should be cross-referenced.
The report should confine itself to facts and not to speculations or suppositions. It is not for the report to draw conclusions of fact. That is for the panel considering it.
The most the report should do is to lay out the evidence for there being, or not being, a case to answer.
Time-consuming? Tiresome? Yes, but fairness demands no less. It is better to put in the time at the beginning rather than to be caught out later.
One strategy to help investigators would be for those commissioning investigations to have a checklist for fairness or objectivity.
It can be difficult if you have been 'commissioned' by a close colleague or someone in an authority position and the complaint is about someone whom others in the team believe is guilty.
However, an investigator must separate him or herself from the normal role. Only absolute objectivity will do. This may be frustrating to others in the team, but the job is to secure for the person or panel making the judgement the best possible basis for making it fairly.
In criminal cases, investigation is now conducted by the police, separate from the decision to prosecute by the Crown Prosecution Service, and from judgement delivered by the court.
Prior to that, there was the danger that rogue policemen 'fitted up' those they 'knew' were guilty, confident that they themselves would decide whether a prosecution should take place and that, in the lower courts, they would also conduct the prosecution.
The intention now is that investigation is to uncover evidence, not to determine the case before the hearing. Members need to ensure they act in the same way.
Richard Bird is ASCL's legal consultant
© 2017 Association of School and College Leaders