Having well-drafted terms of reference is vital to ensuring you can conduct business investigations fairly and transparently. In the course of your business, you may handle allegations about one of your employees engaging in misconduct, bullying, harassment or other poor behaviour. Consequently, you will need to consider launching an investigation to ascertain facts. A terms of reference document is like a plan or outline of how you can conduct this investigation.

This article will explain what a terms of reference document is and what details it should contain. Likewise, it is best practice to seek expert advice from an employment lawyer when drafting terms of reference. 

What Is a Terms of Reference Document?

The terms of reference document is like a roadmap for how an employment investigation will work. It should set out details about the investigator and their role, and clarify the employee’s rights under investigation. It should also tie into any relevant processes and policies your business currently has in place. 

As a business owner, you have a good faith obligation towards your employees. Hence, when conducting an investigation, you must balance the rights of the employee(s) under investigation, and those of any complainants in your business. This good faith obligation means it is essential that the details of your terms of reference document is clear and transparent. 

Additionally, your responsibility to act in good faith towards the employee (and not assume that they are “guilty” or otherwise), means you must allow the employee to provide feedback. Their view throughout the process ensures the investigation remains fair and balanced. 

The other valuable aspect of having well-drafted terms of reference is to ensure that the process is as clear as possible at the end of the investigation. If there are serious allegations against one of your employees, and the investigation finds that these allegations are true, you may be taking serious disciplinary steps against that employee. Hence, it is essential to separate the investigator from the decision-maker to ensure that this disciplinary process is legitimate. Setting these roles out in the terms of reference document is very helpful.

What Details Should a Terms of Reference Document Include?

The circumstances leading to an investigation can be wide-ranging. Hence, there is considerable diversity in what the terms of reference for an investigation can look like. You should seek advice from an employment lawyer at an early stage of any investigation, preferably so they can assist in drafting specific and appropriate terms of reference. However, there are some common features and best practices to include. 

Generally, an investigation’s terms of reference should:

  • clearly identify the matters or allegations that you will investigate;
  • state who the investigator will be and what process they will follow;
  • refer to your business’ relevant rules, policies and procedures;
  • if possible, identify which employee(s) require interviewing (this can change as the investigation proceeds);
  • set out the timeframe for the investigation (this can also change);
  • be clear that the investigator is not the same as the role of the decision-maker, and that the role of the investigator is to determine the facts, not decide any disciplinary outcome;
  • make it clear that anyone can have a support person or representative in interviews at any time in the process;
  • set out what details the final report will contain; and
  • advise who the business contact person for the investigation is.

Get Feedback on Your Draft Terms of Reference

After you finish drafting the terms of reference, you should share the document to the employee under investigation to gain feedback. You should do this before finalising the document. You should also share the terms of reference to any complainants who have made allegations against an employer, and similarly, take their feedback into account before finalising.

Key Takeaways

A terms of reference document is like a plan or blueprint for how an employment investigation will proceed. Your business should develop this document whenever investigating an employee or investigating certain allegations, no matter the investigation scale. Terms of reference help the employee under investigation and any complainants to understand their rights and understand the process. They are also vital for you as the employer, as you have a good faith obligation to be clear and transparent about the investigation process. The details of the terms of reference will change depending on the investigation matters.

If you have any questions about investigations or what a terms of reference document should contain, contact LegalVision’s employment lawyers on 0800 005 570 or complete the form on this page.

FAQs

Why do I need a terms of reference document for an investigation?

A terms of reference document provides a plan for how your business will conduct an investigation. As an employer, you have a good faith obligation to be clear and transparent about serious processes. Your terms of reference allow you to set out all of the relevant details clearly.

Do I need to provide the terms of reference to the employee under investigation?

Yes, you do. You should also provide it to a complainant if there is one (the person making allegations against the employee under investigation).

What is the investigator’s role in a terms of reference document?

You should be clear in the terms of reference who the investigator conducting the investigation will be, and the parameters of their role. Their job is to find facts and come to factual conclusions, but not make any disciplinary decisions or recommendations.

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