Workplace Investigations – Choose your investigator with care
There is no specific legislation or required qualification to conduct a workplace investigation, hence the approach of workplace investigators is wide and varied. It is important to choose your investigator with care as well as having a well drafted policy in place, to ensure the investigation is conducted with the requisite skill.
The importance of a skilled investigator
Workplace investigations are now a regular feature of the workplace. Similarly, there is a trend in the public and private sector to investigate and conduct inquiries of internal practices and decision making. The demand for quality investigators has never been higher.
The appointment of a suitably qualified and skilled workplace investigator either internally or externally is fundamental to the investigation process. The quality of the report will reflect their experience, impartiality, and ability. Organisations must think carefully about who they are appointing as they will have to live with and implement the outcome of that process.
The consequences of a mismanaged investigation cannot be overstated. As can be seen in workplace investigations played out in the media, they can be hugely damaging to the reputation of all parties. It can also result in further complaints and appeals and in the more extreme cases, expose the organisation to potential legal claims.
Key tips for workplace investigations
Workplace investigations can range from the relatively straightforward investigation of a workplace grievance to a serious conduct issue, such as bullying and harassment or have a whistleblowing aspect. Getting it right from the outset is key. It is helpful on receiving a complaint to do a road map as to what the process and potential outcomes may be. The starting point is to ascertain if you have suitable internal procedures to investigate the complaint and whether you also need to put together appropriate terms of reference to tie it in with the complaint made.
This can be useful as often procedures will not be clear on the specific steps to be taken in the process. Organisations should consider who might conduct each stage of the process and what happens if there is an appeal. This will get the organisation thinking straight away about the various stages of the process and what may be required at each stage; whether some people should be kept out of the initial process in case they are needed at a later stage; are there steps now you need to take to protect one of or both parties, is this provided for in existing policies and procedures.
Once the investigation gets off the ground it is important that the investigator regularly communicates with the parties and explains any delays and provides an estimate as to timings for completion of the process, which may be updated. The process will require the investigator to plan the investigation process, interview relevant persons and collate relevant evidence. This is why an ability to interview persons and elicit appropriate information is important. The investigator is not obliged to interview every person that they are requested to meet but they should explain why perhaps they are not, for example, if the information has already been provided by a witness.
Many investigations get bogged down in agreeing minutes of meetings. A way to address this is to call them notes not minutes. Investigators should ensure they have a good note taker with them who is experienced in taking an accurate note of a meeting. The notes can be typed and read back there and then at the meeting to verify and shared thereafter for comment.
Pitfalls to avoid in writing a report
Once the interviews and evidence are collated, the investigator is obliged to put together a report. This is perhaps the most difficult part of the process and in our experience when things unravel. Many investigators exceed their remit and make actual findings in their decision when they are not required to do so as part of the Terms of Reference. This will completely undermine the process and render the subsequent stages of the process obsolete. If one of the employees is legally represented this will be challenged and demands may be made to restart the process and/ or legal proceedings will be threatened and/or instigated.
This will incur time and cost and expose the organisation procedures to public scrutiny and potential negative publicity. As legally trained workplace investigators, we are skilled in advising clients when drafting reports to ensure they align the outcome with the internal procedures and terms of reference.
There is of course less control when the process has been allocated to an external investigator. We also have a panel of legally trained investigators who can undertake such investigations and ensure the outcomes are aligned to the terms of reference and the remit not exceeded in a report.
As legally trained investigators, we are skilled in assessing credibility of the witnesses and evidence. It is not unlike an approach taken by a judge in weighing up the evidence in a trial and explaining their assessment and whether on balance the behaviour/conduct occurred. This is where workplace investigators with a legal qualification have the lead in their trained ability to assess the credibility of the witnesses and evidence and document in clear language their rationale in the report. Legally trained investigators also have the advantage of understanding the law. This is critical when investigating complaints of sexual harass- ment, penalisation and whistleblowing as the legislation around these concepts is complex.
A well-reasoned report will ensure both parties feel heard, potentially head off an appeal and if necessary, used as a defence if required in future legal proceedings. We have a panel of legally trained investigators who can undertake such investigations and/or advise on internal workplace investigations and are accredited by the US Association of Workplace Investigators (“AWI”). This ensures that we are leaders in this area and have the most up to date and international approach to workplace investigation.