8 minute read
Employment relations
What happened?
Occasionally we are called on to carry out an investigation in the workplace. Whether the allegation is of theft, bullying or some other disciplinary matter, investigating it needs a robust and thorough approach. Bindy Tatham from Professional Insight offers her tips and guidance.
Unfortunately, not everyone acts appropriately in the workplace. Concerns about or allegations of misconduct inevitably arise. If the concerns or allegations require an investigation, the investigation must be carried out in a fair manner. But what does that really mean? And once the investigation is complete, how do you make sure that the decision about what happened is a ‘good’ decision?
Fair process in an investigation
A fair process means setting the scope (and sticking to it) and conducting a timely, transparent, impartial and balanced investigation. Carrying out a fair process is in everyone’s best interests – for the person under investigation, the person making the complaint, the organisation and other parties who may have been impacted by the matter.
If you undertake a fair investigation, you reduce the risk that complaints will be made about the process.
Purpose of an investigation
The purpose of an investigation is to find out ‘what happened’. Although investigative techniques vary, asking open, non-leading questions is a helpful way of obtaining accurate and detailed responses from witnesses. A thorough fact-finding investigation should focus on gathering all relevant evidence and may require interviewing multiple witnesses and collecting key documents.
When gathering evidence, you should let witnesses know how and what will happen with their evidence. You should let witnesses know (before they engage in an investigative interview) that their statement or a transcript of the interview will be disclosed to the person under investigation.
It is also important to advise the person under investigation of their right to seek advice or representation at any stage during the process.
Case example
Let’s say Jack has made an allegation about Jane to his manager. The allegation is serious and it needs to be investigated to find out what happened.
Here are things to keep in mind when conducting the investigation.
• Scope – stay above ground and avoid going down rabbit holes.
Jane needs to know what allegation is being investigated. The allegation should be clearly defined in the terms of reference for the investigation, and this is typically referred to as the ‘scope’ of the investigation. It is important that the investigation stays within this scope.
The terms of reference may provide that the scope can be amended during the investigation. This may be needed if information comes to light about Jane’s conduct pointing to further matters to investigate that are not covered by the initial scope. In this case, you should seek Jane’s response to the proposed amendments.
• Timeliness – set timeframes and work to meet them.
Investigations should be timely and not drag on with unnecessary delays. It is stressful to have an investigation hanging over your head. As a check, step back and consider if the timeframes are fair and reasonable from Jane’s perspective.
You may need to outsource the investigation to an independent investigator so that it can be completed in a timely manner.
• Transparency – be open and disclose all the information gathered.
In general, you should provide Jane with all the evidence gathered throughout the investigation process (full disclosure). You might choose certain stages of the investigation to disclose the evidence gathered, or to disclose the information to her as you receive it throughout the investigation process.
Whatever you decide, Jane should know what the process is and what to expect and when. Keeping Jane informed and updated on progress helps to keep the process transparent, and Jane is assured that a fair process is in play.
Depending on the nature of the allegation, it may be appropriate to keep Jack updated about the process. However, you need to be mindful of privacy and confidentiality, so be careful about what you disclose.
• Response – allow the person under investigation the opportunity (and reasonable time) to respond to the allegation.
You must give Jane the opportunity to respond to the allegation and provide her response. This brings balance to the investigation.
The person under investigation should be given a reasonable length of time to consider, digest and respond to all the evidence gathered. What is ‘reasonable’ will depend on the circumstances.
• Independent – the investigation must be impartial.
Impartiality is crucial. In some cases, it may not be appropriate to carry out an investigation inhouse. This may be due to actual or perceived bias or conflicts of interest for the person who would be carrying out the investigation.
If there are any concerns about impartiality (or lack of), it is best to acknowledge these issues at the outset and take steps to appoint an independent investigator.
• Confidentiality – keep all gathered information confidential.
Investigations must respect the privacy of everyone involved, and you must keep the information gathered confidential.
Making the decision – head, heart and gut
Once the investigation is complete, it’s time to make the decision about what happened.
Good decisions are evidence-based. All the evidence must be considered, but irrelevant information (or evidence relating to matters beyond the scope) should be disregarded.
When balancing the evidence, it helps to think about these questions.
• How was the evidence gathered? Were the questions open, closed or leading?
• When was the evidence gathered? Was it close to the alleged incident or a long time after it?
• Were all witnesses spoken to? Is anything missing?
• Is the evidence directly from the witness (first-hand account: “I saw Jane…”) or is it hearsay (secondhand account: “William told me that he saw Jane…”)?
• Are there consistent accounts of what happened? Is there any corroborating evidence?
• Are some of the witnesses more credible and, if so, why?
• Has the person under investigation had an opportunity to respond to the allegations? Are their responses consistent?
When you make a good decision, you will be able to give robust, evidence-based reasons for coming to your decision. Typically, you will use your head, gut and heart in this process.
Bias
Most importantly, you must look dispassionately at the evidence and assess it without bias. Bias comes in many forms – we tend to prefer what is like us over what is different from us (similarity bias); we tend to act quickly rather than take time (expedience bias); and we often take our perception to be the ‘truth’ (experience bias).
If you recognise that you have bias (and we all do), the best thing to do is acknowledge it and then slow down your decision-making. This means you can be aware of the impact your bias might have on your decision and take steps to minimise its impact.
Gut feelings
In addition to your head, your gut is part of this process. We often talk about our stomach as our ‘second brain’.
Our gut reactions and feelings may play a role in decision-making, but they should follow the decision made in our head. That’s why it’s the second brain, not the first! Decisions can’t simply be based on a ‘feeling’ or ‘instinct’. If your gut is telling you something did or didn’t happen, you must be able to find solid evidence (with your head) to support this finding.
Your heart plays a role too, but it should not override the rational or logical outcome that follows from your head. We are humans and it is natural to feel for people, to sympathise or empathise with their situation. These feelings cannot be ignored but, like the gut feeling, they should play a secondary role to the decision made in your head. It wouldn’t look so good if your decision said, “We felt sorry for her and she was a really nice person, so we let her off”.
Sometimes the decision you want to make (in your heart) cannot be made on the evidence. In these cases, you should rely on your head – the first brain. If you cannot support the decision made with robust and solid evidence-based reasons, the decision may be vulnerable to challenge.
Summary
First, it is critical to collect the best evidence available in a fair manner.
To check your process, take time to step back and ‘put the shoe on the other foot’ to test your approach from the perspective of the person being investigated.
Decision-makers should then dispassionately consider all the evidence and be able to justify the decision made with evidencebased reasons.
Bindy Tatham is a licensed investigator, and along with Rachel Kent has recently set up an investigations firm in Wellington called Professional Insight. Bindy and Rachel are enrolled barristers and solicitors of the High Court and have broad experience in managing and investigating professional misconduct, and have both worked for, and alongside, a number of professional regulators. Email info@professionalinsight.co.nz for more info.
