"Top 10" Investigation Mistakes and How to Avoid Them

Bullying. Harassment. Serious misconduct. Workplace investigations are becoming increasingly common due to the growing number of cases arising from allegations of unacceptable workplace behaviour and the expectations of employers in terms of how they manage those allegations. Employers must ensure that the process and the outcomes are fair, transparent, legally compliant and defensible. To err is to risk a Personal Grievance from either the complaining employee or the perpetrator.

There is no 'model investigative process' as each situation needs to reflect the allegations, the parties and the Employer's specific workplace. However, I have highlighted the 10 main mistakes employers  need to avoid to ensure that their actions and finding are solid and defensible.

1. Not following the process

Every Employer should have a grievance or complaint policy (and if you do not you should consider drafting and implementing one as a priority.) The best policies avoid mandating that specific step must be followed, reserve discretion and allow flexibility to cater for different circumstances. Deviation from the process set out in the policy should only occur with sound reasons for doing so and the consent of those involved in the investigation should be obtained. This minimises the risk of technical objections and challenges on this point at a later date.

2. Failing to plan is planning to fail

 Failing to plan an investigation can affect the outcome and defensibility of findings. This involves:

·       Identifying all potential witnesses

• Working out the order of interviews
• Working out the mechanics of the interviews
• Whether to suspend the alleged wrongdoer
• Choosing the right investigator

3. Not choosing the right investigator

The selection of an investigator will depend on the nature and seriousness of the matters and the extent of the resources (time and personnel) required. An internal investigator may not have sufficient experience nor potentially attract legal professional privilege and confidentiality that a lawyer does. It may be prudent for an employer to engage an independent third party to conduct a workplace investigation to establish a process that is perceived as independent and free of bias 

4. Confusing investigator as decision maker

The investigator should avoid acting as decision-maker on anything other than very minor matters. Separating the investigation function from the decision-making function is prudent.

5. Relying on “untested” information

Information should be tested as far as possible, and if untested information is going to be relied on, the investigator should be able to justify why that reliance was reasonable in the circumstances.

6. Not knowing the role of a support person

Within the Personal Grievance regime, unreasonable refusal to allow the opportunity of having a support person is almost indefensible. The case law in this area has clarified that a support person’s role is limited to assisting the relevant employee. An investigator has the right to caution or silence a vocal or obstructive support person and, in extreme cases, suspend or terminate the interview.

7. No logical order

Whilst it is not fatal to have to reinterview witnesses, having an order to the process will minimise this potential. This is usually best achieved if the order of interviewees starts with those who know the most. This can also identify additional interviewees or evidence.

8. Morphing the investigation and disciplinary steps

The disciplinary process only starts when the investigation findings are finalised and accepted. The investigator should not conduct the disciplinary hearing, as perceptions of bias and predetermination are hard to rebut.

9. Not dealing with the findings and implementing recommendations (if there are any)

An Employer who fails to act on the recommendations risks

• being seen as excusing unacceptable workplace behaviour
• undermining the integrity of the complaint or grievance procedure
• have Personal Grievance risks if bullying or harassing behaviour continues
• restricts a defence that you took all reasonable steps to prevent the conduct.

10. Not learning from mistakes

Finally - it is a sensible Employer that reviews the investigation once it is completed. Were there lessons to be learned? What were they? For example:

• Was the relevant process easy to follow?
• Were employees able to access and rely on the policy, or was there confusion?
• Were there any gaps in your policies, flaws in processes, other failings?

Key Take-Aways for employers

It is important that Employers carry out investigations properly, as a failure to do so can compromise how you defend the matter, if it progresses to litigation. A best practice investigation will be “sound, appropriate and responsive” and will provide the employee with every opportunity to present their version of events.

There are benefits attaching to engaging an external investigator to conduct workplace investigations, including that participants in the investigation process are likely to be more confident that the findings of an external investigator are unbiased, and accordingly may be less likely to challenge them.