This article is by Gareth Jones, who creates and delivers our workplace investigation courses. It was published in Canadian HR Reporter.
If you are interested in workplace investigation courses, please see the links on the right side of this page and the contact information at the bottom of the article
A lot of people think investigating is easy. That, I suspect, is because most of them get their experience of how investigations are done from watching TV. After all, how difficult could it possibly be? Everything gets resolved in an hour. It’s usually pretty obvious who the villain is. Nobody ever writes anything down. The biggest giveaway? All the investigators are svelte and good looking, which is not necessarily always the case – present company excepted, of course.
Unfortunately, in the real world – and in the real workplace – investigating is a lot more difficult than it is portrayed on TV. In my experience, workplace investigations are among the most challenging of all types of investigations, particularly where harassment or discrimination is alleged.
Here’s why:
- The stakes can be very high. The reputations of individuals and organizations are on the line, as may be livelihoods and careers. If the case is juicy enough, the media may take an interest. Often, litigation lurks in the background.
- Cases can be complex and nuanced. They may revolve around situations where one person’s performance management is another person’s harassment. Similar fact evidence – did the boss behave the same way as she is alleged to have behaved in a past instance – may be an issue. Corroborative evidence may be scare or non-existent. Often, the cases boil down to ‘ he said, she said.’
- There may be underlying systemic issues that, if ignored or overlooked, will lead to a future reoccurrence of whatever the problem is.
- It’s easy for even the most minor of cases to quickly spiral out of control. The scariest of complainants, the querulant, frequently appears in workplace cases. A querulant is someone who will never give up their complaint, however minor the issue appears to be or however reasonable the resolution proposed. They do not just want the head of the person(s) they perceive to be the cause of the injustice, they want several other organs as well. They will make your life hell.
- Workplace investigations can be devastatingly disruptive, if not done right, particularly if the event(s) that triggered the investigation has already created a toxic work environment. Morale may plummet, along with productivity. People may be shuffled around, go on leave or be suspended while the allegations are looked into. The rumour mill accelerates into warp-speed. Tempers may boil over. Workplace violence? Potentially.
- Allegations and/or perceptions of investigator conflict of interest and bias will almost inevitably be live issues. They have to be dealt with upfront.
Yet in spite of what is at stake, far too often the people assigned to conduct a workplace investigation have little or no training in how to find facts. As a result, the investigation can, and sometimes will, go horribly wrong. And the consequences of a botched investigation can be very, very serious.
Don’t Worry – OK. Worry.
However, there is a solution. There are 8 principles that underpin virtually every kind of fact-finding. They cover all types of workplace investigations, not just those involving HR issues. They apply to all investigations.
The principles are simple:
- The investigator(s) must be as independent as possible
- The investigators must be appropriately trained and experienced
- All potentially relevant issues must be identified and, where appropriate, pursued
- The investigation must be sufficiently resourced
- All relevant physical/digital evidence must be identified, preserved, collect and examined as necessary
- All relevant documentation must be secured and reviewed
- All relevant witnesses must be identified and thoroughly interviewed
- The analysis of all the material gathered in the investigation must be objective and based solely on the facts
Not all of these principles apply in equal measure in every case. In some instances, one or two may not apply at all. That being said, a good investigator considers them all, as they plan and execute their investigation. While no investigation is perfect, the closer the investigator sticks to these principles, the more likely the investigation will be able to withstand subsequent scrutiny, be it by those involved, a tribunal, the Courts and/or the media.
Dial It Up To Eleven
As mentioned, workplace investigations are special and they require a special approach. Here are 11 steps you might want to consider as you plan and execute your investigation. They are based on the 8 principles above.
1. Conduct a case assessment, now. Not tomorrow, now.
Decide whether an investigation is necessary, as soon as you can. Is Alternative Dispute Resolution (ADR), mediation or some other informal resolution mechanism a viable option? It might not be – especially in high profile cases or if the facts are in dispute. If you are likely going to have to investigate, get started as quickly as you can.
2. The more independent the investigator, the better
The real and perceived degree of separation between the investigator and the investigated is critical. In all cases, try and get buy in from involved parties as to choice of investigator before the investigation is launched. Inevitably somebody will not be happy with the outcome of your investigation. Sometimes no one will be. The investigator may be accused of being biased, particularly if he or she works directly for the organization involved. Bringing someone in from the outside may go some way to deal with that concern, but it is by no means a panacea.
3. Use trained and experienced investigators
The more serious the allegation and possible exposure, the more necessary it is that the investigators know what they are doing. Sending Fred the wet-behind-the-ears junior policy analyst from Human Resources (armed only with his one-day workplace investigation course taken two years previously and with no cases under his belt) to investigate complaints of serial sexual harassment against the CEO, is a sure-fire recipe for disaster. Conducting investigations is not a game for amateurs. There is no substitute for an appropriate level of training and experience.
4. Identify all relevant issues
Decide what it is, and just as importantly what is not, being investigated. Explain your reasoning to those involved. Don’t create expectations you cannot meet. Identify any potential systemic issues from the get go – perhaps a policy or training issue, for example. If you sort out the root cause of a complaint, you may be nipping lots of future ones in the bud.
5. Plan the investigation
Planning the investigation gives the investigator a roadmap. It assists in identifying the issues, pinpointing sources of evidence, anticipating potential roadblocks and then coming up with ways to overcome or avoid them. Planning helps identifying specific concerns upfront, such as how to deal with possible retaliation against any involved party or how to handle whistleblowers. Most importantly, a plan will assist the investigator develop milestones, timelines and, that Holy Grail of the world of investigations, a firm completion date.
6. Give the investigation the resources it needs
The quicker you can gather the evidence and reach a conclusion, the better. The longer an issue is allowed to fester unresolved, the more likely the workplace is going to become dysfunctional and polarized. Plus, time is not an investigators friend. Evidence is perishable. Memories fade, or may be tainted, inadvertently or otherwise. Documents get lost or are destroyed. Hard drives disappear or are wiped. Assign a sufficient number of investigators to gather the evidence as rapidly as is reasonably possible, commensurate with the seriousness of the issue.
7. Keep control of the investigation
Never lose sight of the fact that it is your investigation – nobody else’s. Trust me, nobody will come to your rescue if you screw it up. Don’t defer to complainants, respondents, management, unions, lawyers, or anyone else. You make the decisions, to the extent that you can. You determine what is relevant and what is not, who is interviewed when, where and how, what documents you require, what resources you need, how long it will take and so on.
Easy to say, difficult to do – I know. But don’t be afraid to take charge. If someone says no to a reasonable request, then they will have to explain why.
8. Avoid creating waves
Workplace investigations are disruptive by their very nature. However low-profile you try to be, everyone in the workplace will know that an investigation is going on within about 30 seconds of it getting started. That is another reason why speed is so important. There are ways to minimize your impact – including doing as much of the fact-finding off site as you can, or requiring that employees do not discuss the case with anyone else, at least until the conclusion of the investigation. Some organizations, such as Service Canada, make it a disciplinary offence for any party to breach confidentiality in harassment complaint investigations. Laudable, but difficult to enforce.
9. Provide information where you can, but be careful
You are not the Spanish Inquisition, nor a Star Chamber. Generally, parties to an investigation should be provided with information about the investigation, provided it does not affect the integrity of the investigative process. Let parties know where you are in the process and when the investigation is likely to be concluded. It’s no fun being involved in an investigation, be it as witness, complainant or respondent. Providing an overview of the process may alleviate some concerns, though you obviously can’t share anything substantive.
That being said, I am not a big fan of respondent and complainant exchanging detailed written accounts of the complaint and response, with endless opportunities to rebut the rebuttals. It tends to raise the temperature. Everybody becomes entrenched. It prolongs the process. There are very few other kinds of investigation where this occurs, particularly before the parties are actually interviewed by the investigator.
10. Gather all the relevant evidence
If an investigation is worth doing, it is worth doing properly. Be methodical. Identify your witness, documentary and physical evidence as you plan. Be prepared to deal with other evidence that will almost inevitably emerge as the investigation progresses. An investigator’s worst nightmare is when, after you conclude your investigation, someone or something crawls out of the woodwork with evidence that you should have gathered. That evidence may contradict your findings. Even something as simple as failing to ask at the end of an interview if there is anything the interviewee wants to add, can be fatal. “ I would have told you, but you never asked me,” is a sentence an investigator never wants to hear.
11. Objective assessment of the evidence
This can be complex in some workplace investigations. As mentioned, in many cases there is little in the way of corroboration, including evidence from independent witnesses. A case often boils down to an investigators assessment of credibility, which can be challenging. Your assessment should be based on actual evidence, not speculation or personal feelings. Explain why you think you have sufficient, relevant, reliable evidence to support whatever your conclusion is. Deal openly and transparently with evidence you discount, explaining why you reject it.
The Bottom Line
Workplace investigations can be really tough. Screwing them up is easy. Everybody’s reputation – including yours – is potentially on the line.
But take heart. If you follow the principles and steps set out above, you will not go too far wrong.
Gareth Jones is a former Director of major investigations at the Department of National Defence and Canadian Forces Ombudsman’s office. Prior to that he was an investigator at Ontario’s Special Investigations Unit (SIU). He was a police officer with the Metropolitan Police, London, UK. He has been involved in workplace investigations as a senior manager, shop steward and investigator.
Gareth is the author of Conducting Administrative, Oversight and Ombudsman Investigations, published by Canada Law Book in 2009. He delivers customized and general investigative training courses to public and private sector organizations across Canada and internationally, including UN agencies. For details see www.investigationstraining.com
Interested in a training session? Four-Day Investigations course. (click here) The first day is about the Fundamentals of Investigation, the second on Investigative Interviewing and the last two on How to Use the Internet as an Investigative Tool. You can pick and choose one or more days, as you please.
The course is accredited for CPD/CLE by a number of Law Societies and Human Resources Professionals Associations across the country.
And, as always, don’t hesitate to contact us if you have any questions about anything investigative. Contact Barbara at:
Email: bjaworski@workplaceinstitute.org
Phone: 416 704 3517
Gareth also creates and delivers customized workplace investigations courses for organizations.