Having spent almost half of this last month training individuals on how to conduct workplace investigations, I’ve been involved in some very interesting discussions with the over 75 people who have attended those sessions. Here are some of the highlights:
- Internal investigators are anxious to understand when they should not be the one to conduct an investigation.
Individuals attend our courses to learn how to conduct proper and legally defensible workplace investigations. Their goal is to be able to do this work on behalf of their organizations, and helping them achieve this goal is one of the reasons we developed our course so many years ago. That being said,internal investigators have almost always encountered investigations that they do not feel comfortable doing and are anxious to learn whether and when it is appropriate to retain an external service provider in these circumstances.
As we discuss in our course, there are most definitely times when investigations should not be done by internal investigators and when the assistance of an external expert should be explored. Some examples include when the internal designate does not have the time or expertise for the job, or when they might be biased based on their knowledge of the parties or the subject matter. They should also consider looking outside of the organization if the subject matter of the investigation is very serious or runs a high risk of legal challenge.
- Internal investigators recognize the importance of investigations as part of a system which contributes to optimal organizational culture.
In our course, we talk about the events which trigger the need for an investigation and we also discuss the fact that not every problem requires a formal workplace investigation. Where a matter can be addressed informally, this is optimal, but we also discuss how to identify circumstances which suggest that a formal investigation should be done. We often see situations where a company manager has decided to try and sort out a problem “informally” by bringing the two people into a room to sort things out, or worse by sending them off to do this themselves, and not only has this not solved the problem, it has often made it worse. Knowing when a formal workplace investigation is appropriate is an important skill for an internal investigator.
We also discuss why investigations are important to the organization. Why don’t organizations just respond to complaints by firing employees identified as wrongdoers? Because to do so would send a message to other employees about the lack of fairness which exists in the organization and how individuals are not valued. In order for a complaints mechanism to work as it should, employees need to have confidence that when issues are raised, they will be investigated fairly and thoroughly, before decisions are made regarding outcomes. This does not always necessitate the need for a formal investigation, but it does imply fairness. Firing someone because they are accused of wrongdoing without any investigation into the truth of the allegations is not fair.
- Internal investigators understand the need for a proper process.
When we go around the room at the beginning of session to hear what people are specifically looking for from the course, those who have done investigations already say, almost without exception, that they are looking to confirm they are following the proper process. Those who are new to the practice tell us that they are looking for a template they can follow. Again, they seem to intuitively recognize the important role that the process plays in ensuring a fair and thorough investigation.
As external investigators, we often get retained in cases involving serious allegations and, more often than not, one or both parties are represented by legal counsel. Increasingly, we are seeing counsel far more concerned with the process that is being followed than the subject matter of the investigation itself. The facts are what they are, but a poorly conducted investigation can give counsel a basis for a claim. Internal investigators recognize this and are anxious to confirm that the process they are following will be supported, if challenged.
Workplace investigations have come a long way since the early days when all an investigator had to do was be sure to interview the complainant, the respondent and some witnesses and then prepare a written report of some kind. Now, investigators find themselves called upon to make significant judgment calls along the way, many of which can affect how the investigation proceeds and sometimes even affect the outcome. For example, “Should I wait to interview the witness who is on sabbatical and travelling overseas? If I don’t and they have important information, it could affect the case. If I do, but it means waiting another six months until I conclude the process, I may find after I’ve spoken with the witness that other evidence has been lost because of the time lag.” In our course, we discuss these considerations and give internal investigators tools to assist them in making these judgment calls. There are no perfect answers, but making decisions like this in the course of the investigation in a reckless way and without regard for the impact on the overall process or the outcome can be all the ammunition that counsel for a party needs to call the integrity of the entire process into question.
As external investigators, we know that not every organization has the luxury of being able to afford our services. We also recognize that this is often not needed, and we discuss this with prospective clients, helping them find the best and most cost-effective solution to their workplace problem. For us, the genesis of our training programs was a desire to support internal investigators in bringing this expertise in-house and provide them with more options to help them solve their challenging workplace issues. Getting to meet and spend days with these internal investigators is some of the most interesting and satisfying work that I do.