Every workplace encounters employee disputes and misconduct allegations. Investigating these complaints can be difficult as they are often personal, complex and unpleasant. They also have potential serious consequences for the people involved.
To ensure a proper investigation is conducted which is procedurally fair, it needs to be determined who the best person is to conduct the investigation. Should it be conducted internally, perhaps by HR or senior managers, or externally by lawyers or consultants?
There are a number of considerations to take into account that will help with this decision.
It is important that whoever investigates a workplace complaint is, and is seen to be, free of bias. It is most common for investigations to be conducted internally, either by management or HR staff. Although there are advantages to this, such as detailed knowledge of policies and procedures and the particular workplace culture, the obvious disadvantage is perceived bias.
Internal investigators are more likely to know the people involved and may have even been involved in other workplace issues, for example, performance management. Consequently, internal investigators run the risk of being in a position of conflict or at the least, perceived bias.
Maintaining impartiality is crucial to the success of an investigation and an external investigator is less likely to be perceived as biased.
It is critical that any investigation into a workplace complaint is conducted appropriately and fairly. Courts repeatedly attach great importance on procedural fairness in investigations. It is imperative that the investigator has the right skills and understanding to ensure fair process. Any organisation undertaking such an investigation needs to consider whether it has staff who are equipped with the correct knowledge and experience, or whether external investigator with those skills and experience should be engaged.
An investigation should not be run part-time and just fit in around other commitments. It requires immediate action and the investigator should be dedicated to that investigation. Investigations can be very time consuming, they are often complex, involve the gathering and consideration of extensive evidence and may go on for months. There are often many hours of witness interviews to do. It may be difficult for internal staff to effectively and efficiently conduct such investigations when they have ongoing and/or competing priorities. The organisation may prefer its staff to focus on their normal tasks and engage external investigators to dedicate the necessary time and focus on the investigation.
Lastly, in order to avoid any suggestion that the outcome of an investigation was predetermined and the investigation was merely designed to achieve that outcome, the investigator who is responsible for determining what has happened, and whether a breach of policy or employment agreement has occurred, should not be the same person who makes disciplinary decisions.
Quite often, senior internal managers lack the necessary experience to appropriately conduct a workplace investigation. Others, such as HR, do not have the time to devote to complex investigations on top of their existing workload. Critically, if the investigation is conducted internally, there can be a significant risk of perceived bias towards either the complainant or the accused. Any decision as to who undertakes the investigation should be decided with these factors in mind to ensure a fair process for all involved.
This article was written by Senior Associate, Adam Crichton.
Practice Area: Employment