What are Terms of Reference? Do You Need Them?

What Are Terms of Reference? Do You Need Them?

Terms of reference (TOR) form a foundation stone for the commencement of any workplace investigation. Much like a recipe, they set out the core people and components of the investigation, as well as the boundaries and methods to be utilised. Without solid terms of reference, an employer’s well-meaning attempt to gather information and fix a workplace problem can fail, or cause even more problems. As well as establishing an understanding of what is required and by when, TOR create an excellent framework for the more detailed investigation plan. Terms of reference can prevent such pitfalls as misunderstandings, unintended breaches of privacy, and negative effects on relationships.

When should the TOR be developed?

There are no hard and fast rules regarding how and when TOR should be drafted. Some employers start with a Statement of Complaint and flesh out the terms of the proposed investigation based upon this central concern. Others call upon the services of a workplace investigator to actually assist in drafting TOR, particularly where a workplace problem is vast, sensitive, and/or complex. Sometimes it is important to wait and collate some preliminary materials prior to pinning down the exact terms of the investigation. In any event, it is important to start working on your TOR sooner rather than later, and certainly once a workplace investigation is confirmed.

what will the tor include?

The terms of reference represent what the employer and the workplace investigator have agreed upon. Not surprisingly, both parties are entering into a human territory where all sorts of sensitivities can crop up – emotional, occupational and legal. It is common sense that the TOR will be designed with these issues in mind, creating a clear framework for the investigation. In essence, the TOR should contain the ‘three R’s’ of an investigation – the reason, the remit (or scope) and the report. 

The reason section of a workplace investigation TOR will include the general purpose of the investigation, the people and incidents known to be involved, and the types of questions that need answering. The remit or scope sets out the boundaries of inquiry, including documents, people and activities that can be explored by the investigator – and those that cannot. It also includes what is required from the investigator in terms of deliverables, such as interim reports and final actions. For example, this part of the TOR will specify if the investigator is simply fact-finding or is working with a view to dispute resolution or discipline. The TOR then specify what form the final report will take, who can be supplied with copies, and when it is due. Where no report is required and an oral discussion is preferred, the scope and purpose of this discussion should be noted.

What can the TOR achieve?

As mentioned above, the circumstances leading to the need for a workplace investigation can be quite fraught. Concise and clear terms of reference help to ensure the smooth running of the investigation. They can prevent irrelevant issues being raised (such as old wounds) and provide an element of professional objectivity. Considering the need for procedural fairness in all aspects of employment law, TOR provide the means by which emotive or biased considerations can be eliminated from the investigation. Further, sound terms of reference provide an excellent starting point for the drafting of a workable investigation plan. For both employer and investigator, the chances of misunderstandings are reduced in relation to the many aspects of the investigation’s reasons, remit and desired report. Put simply, good terms of reference can be a guiding light through the sometimes-choppy seas of a workplace investigation.