By Sascha Nicoll
While Hollywood’s depiction of investigation work can often be over-dramatic and over-glamorised (looking at you, Sherlock Holmes), a real-life workplace investigation may disappoint – the process can be more tedious and less adrenalin-packed than what you see on crime dramas. Still, workplace investigations are vital for solving workplace issues or misconduct, and the ability to run one effectively is a respected skill.
In this article, I share three helpful pointers to help you manage a fair and compliant workplace investigation. Let’s begin!
Understanding workplace investigations
A workplace investigation is a process to address allegations of misconduct or serious misconduct in the workplace. All claims of wrongdoing should be examined carefully, regardless of whether it was a manager, colleague or customer who put the complaint forward.
An investigation should be undertaken in good faith and using natural justice principles to uncover the facts. With your investigator’s hat on, you need to take the time to discover what happened and why, without jumping to conclusions, so you can be confident that you’re taking the most appropriate disciplinary action.
The investigation can come before the actual inquiry in complex matters, such as bullying or harassment issues or theft. By investigating the issue first, you can be confident you have a good basis for conducting an inquiry into the allegation, and you’ll have evidence for your case.
The following are our three points to keep in mind when conducting a workplace investigation:
1. Handle your investigation with confidentiality
Investigations are sensitive matters; you should never disclose any information to third parties including the remainder of your workforce or any customers or clients. It would be unprofessional to share details of the investigation with anyone who doesn’t need to know. Even witnesses (who may have some knowledge of the situation) shouldn’t be trusted with details beyond what they heard, or saw, already.
Always carefully consider what details you need to divulge to the parties who are involved in the investigation. While it’s necessary to share some details in the interest of eliciting information, for example, you wouldn’t get very far if you said: “Someone has accused you of doing something on a particular date.” The majority of information gathered during an investigation should usually be kept private.
Another thing to keep in mind when maintaining confidentiality is timing; you want to get the timing right when you let the employee in question know about the allegations made against them. Ideally, you should wait until you’re certain there’s an issue to investigate. An inquiry into a workplace issue can be embarrassing or awkward for an employee (especially if it turns out they never engaged in the alleged behaviour).
2. Avoid bias
On the back of confidentiality comes another professional responsibility: genuinely remaining impartial and being perceived to be impartial. You shouldn’t permit any employee involved in the complaint (whether as a witness, complainant, or alleged perpetrator) to conduct the investigation.
There are two principal roles in an investigation that you need to fill before you start. I recommend nominating two different people for each of the below roles, as this can mitigate any risk of prejudice:
- The investigator, who’ll gather the facts and ensure that the inquiry is neutral and balanced; and
- The decisionmaker, who’ll weigh up the findings and determine the outcome of the investigation.
Although it’s not a requirement to use an independent investigator or external decisionmaker, doing so can protect your business against any claim of bias that could impact the credibility of your investigation outcome – especially if the decision is controversial or potentially grievance worthy.
If you only have a small team and most or all employees have been affected by the complaint, it’s wise to engage an external HR consultancy firm to perform the investigation on your behalf. By doing this, you’re reassuring your employees that you take impartiality seriously. If you need support with a workplace investigation, you can contact the team at HR Assured.
3. Be thorough and fair
We don’t expect the police to cut corners when investigating crimes, so employers and managers shouldn’t either. Here’s a short acronym, R.E.A.D, to help you remember the vital steps in a thorough and fair investigation:
- Record all communications, steps taken and findings of fact. You may need these records as evidence of your process later.
- Ensure that you’re following set internal processes for the investigation by checking things such as employment agreements, and any applicable company policies and procedures.
- Avoid deviating from an established or clear process without having a very good reason for doing so and explaining to all parties why if you do.
- Don’t make any conclusions or decisions about the matter until all evidence has been analysed, including the response of the alleged perpetrator.
Inviting an employee to a workplace investigation meeting
When you invite your employee in question to an investigation meeting, you’ll need to give them an outline (in writing) of the following:
- what allegations are being made against them;
- the nature of the allegations;
- who will be participating in the investigation and what their roles will be (investigator or decisionmaker); and
- the process which will be undertaken.
At this time, you should also share any information that has come about from the investigation so far, such as witness statements and other important documents.
Your meeting will be much more constructive if your employee has an opportunity to review the investigation documents and prepare a response or explanation for when you meet face to face.
Finally, it’s essential to remind the employee of two things: first, that no decisions will be made until they’ve had an opportunity to respond; and second, that they’re welcome to bring a support person or representative along to the meeting.
In our experience, it’s good to ensure the support person and the employee understand the time commitments they must make and the steps involved in the investigation process. You want to ensure that the employee’s representative can make a realistic commitment. A Scope of Investigation document is a useful tool for setting these expectations.
In summary, an unfair investigation may well lead to an unfair dismissal; we all know how inconvenient and damaging to the business a claim like this can be!
Workplace investigations are a complex procedure and can be difficult to get right. If you’re not comfortable with conducting your own, or you would like assistance through the process, we encourage you to seek professional advice to be sure you get it right.
If you’re not already an HR Assured customer and you’d like to try our award-winning Telephone Advisory Service, contact us for a FREE no-obligation consultation.
Sascha Nicoll is an Employment Relations and Safety Consultant at HR Assured New Zealand. She has over 15 years of experience working in the HR industry in both consulting and in-house roles. Sascha supports business leaders on various workplace matters, including people management, health and safety, procedural development, and HRIS support.