Recent decisions have reinforced the fundamental requirement that employers investigate workplace issues fairly and thoroughly.Cases demonstrate how serious procedural deficiencies in an internal workplace investigation can contaminate the process and the disciplinary decisions which follow.
An employer may encounter significant costs if an employee seeks to challenge an employer’s decision in a tribunal or court on the basis that the investigation was flawed. These costs include legal representation, negative publicity, management down-time (as a result of the time involved in responding to the employee claim) and potential diminishment of workplace culture.
We have drawn the top ‘must dos’ from recent cases that we recommend that employers adhere to when investigating a workplace issue internally.
Internal investigation ‘must dos’
While case law has established that employers are not obliged to conduct perfect workplace investigations, courts and tribunals do expect employers to apply the principles of procedural fairness - particularly when the outcome of the investigation may be demotion or termination of employment.
To assist in meeting this expectation, Gadens recommends the following ‘must dos’ for employers when conducting internal investigations:
- Absence of bias – the appointed internal investigator must be impartial. This means they must not have an actual or perceived conflict of interest or any decision-making powers in relation to the outcome of the investigation;
- Fairness – the respondent must be provided with an opportunity to properly consider the allegations made against them and provide a response;
- Timeliness – when faced with a workplace issue which requires investigation, respond promptly, but not at the expense of fairness or a thorough investigation;
- Thorough – the appointed internal investigator must interview all relevant witnesses and review relevant evidence. Also ensure that the investigator who is appointed to conduct the internal investigation has the appropriate experience/training;
- Transparency and confidentiality – be transparent about the steps involved in the investigation. Details of the investigation should only be communicated on a need-to-know basis, in order to protect the complainant, the reputation of the respondent and the integrity of the process;
- Adherence to policies and procedures - get HR involved at the outset. HR should review compliance with the relevant policies and procedures as the investigation proceeds and rectify any non-compliance;
- Consistency - take a consistent approach to investigating and dealing with employees who breach workplace policies or procedures; and
- Paper trail - document the investigation to demonstrate that applicable policies and investigation procedures have been followed.
These ‘must dos’ will increase the likelihood that employees will trust the investigation process and outcomes (reducing the likelihood of an employee making an external complaint) and employers’ decisions will be defensible if they are ultimately reviewed by a court or tribunal.