Some legal tips for employers to ensure they dot all the i’s and cross the t’s when it comes to workplace investigations.
Workplace complaints involving alleged bullying or harassment, a senior member of staff, a repeat offender, or anything serious or distressing will generally require a workplace investigation. But many can come unstuck due to common mistakes. Perhaps one of the most frequent mistakes is an employer failing to follow their own internal investigation procedures. This may reflect an organisation whose policies and procedures are not well understood, or have been filed away somewhere in the bottom drawer.
Another common mistake is failing to act quickly to investigate, creating the perception that inappropriate behaviour is tolerated in the workplace and not taken seriously. There is potential for missteps around interviews and evidence gathering. Employers may fail to question witnesses adequately to gather information. They may draw conclusions from a witness known to be unreliable, or from information that has little substance.
In some cases, employers make the mistake of interviewing witnesses in group settings when it was apparent there is a conflict of interest and they should have been interviewed separately.
What does a good investigator need?
A good investigator will have strong report writing and interviewing skills, patience, flexibility, perseverance, and good communication skills. They will also understand the applicable workplace policies and procedures, and the rules of procedural fairness. Prior to commencing an investigation, the organisation should provide an investigation brief to the investigator. It should include the allegations being investigated, any relevant documents such as policies, emails and IT reports. It will identify the complainant, the respondent, any witnesses, and the chronology of known events.
Most importantly, the investigator should not have a predetermined view of the outcome, or a personal relationship with any of the parties. Nor can they be a potential witness, or investigate an issue they may have previously advised on. Investigators need to maintain a professional distance with participants during interviews. They need to remain independent and make their findings on the evidence alone. Investigators must recognise a conflict of interest and deal with it – even if it means having to step aside.
Organisations should seek external expertise when they do not have someone internally with these skills and qualities, or if they are somehow compromised, or if there’s potential for litigation.
Workplace investigators may be overwhelmed by an investigation, yet courts and tribunals understand the reality of the workplace – they do not expect an employer to conduct the equivalent of a police investigation. But any investigation must be procedurally fair. This will usually involve clearly stated allegations (any allegation which is vague or overly subjective will not stand up to scrutiny; nor will anything based on rumour, or any allegation that is too old) and following fair and comprehensive internal complaint handling procedures.
Tips for a procedurally fair investigation:
- The respondent knows all allegations made against him or her
- The respondent is given a reasonable opportunity to respond to the allegations
- Confidentiality is maintained
- The investigator is impartial
- The investigator considers all relevant evidence
Legal advice and assistance
Legal advice and assistance provided before an investigation commences may offer protection via legal professional privilege: this may limit the information about the investigation which is available to the parties involved in the complaint – important if a claim ends up in court.
Legal advice might also steer the case in the right direction. For example, there are workplace complaints described as bullying, but if it’s a one-off incident then a bullying claim will not stick – there needs to be a pattern of unreasonable behaviour over time to constitute bullying. If disciplinary action is required because of the findings of an investigation, you need to ensure proper process has been followed and legal obligations are met.
Alison Baker is a partner at Hall & Wilcox.
This article originally appeared in the September 2017 edition of HRM Magazine.