A senior lawyer with a global law firm has identified the biggest errors employers make when having to conduct a workplace investigation and outlined strategies to avoid making them in future.
Speaking at Thomson Reuters Australia’s recent Mental Health and Employment Law Conference, Herbert Smith Freehills special counsel Heidi Fairhall shared the importance of having correct procedures in place when it comes to the investigation process behind a complaint.
“Employees need confidence that if they speak up or raise concerns that those concerns will be dealt with,” Ms Fairhall said.
“… Every investigation, in terms of how you manage it, you need to think at the outset, what is this likely to mean for the organisation? Who are the individuals involved? What sort of impact is this going to have? What do we need to do as part of planning for the investigation and supporting everyone that's part of the investigation?
“That might mean removing people from their role, but if you do that, you need to do that in a sensitive and appropriate way. You need to give them alternative duties that are suitable and not demeaning or not diminished.
“And in terms of how you’re communicating with individuals during the process – do they need a separate support person/separate department manager, so that they feel they’re not being pre-judged.”
Ms Fairhall identified seven key mistakes that organisations commonly make during internal workplace investigations, and offered solutions on how to tackle them.
The first mistake, she noted, relates to a lack of planning and preparation.
“A lot of the times when complaints are raised, they might be raised about very serious issues, so there’s a tendency and an imperative to jump in and act quickly, but you need to counterbalance that because you need to plan appropriately,” Ms Fairhall explained.
“Consider risk factors; consider the steps you need to take to support the investigation throughout it, bearing in mind that some investigations can drag on for months.”
The next mistake investigators tend to make is having a preconceived view of the people involved, according to Ms Fairhall.
“I think as much as possible, you need to take the concept of innocent until proven guilty. It’s important to keep an open mind to the individuals involved in the investigation,” she said.
Giving a “guarantee” on certain matters concerning the investigation process, or sharing unrealistic expectations, is another mistake commonly made, Ms Fairhall noted.
“This includes your ability to charge the investigation in a certain timeframe. For me, that’s one of the major issues,” she said.
“Investigations can sometimes involve opening a Pandora’s Box. You investigate some allegations, you interview people and then it throws down a whole other set of allegations and it can drag on and on. And you need to get background to get people’s responses to things that have been raised during the investigation.
“Bear in mind, if you’re making ironclad promises to people about the timeframe about the length of an investigation, you may run into trouble and that can damage people’s sense of confidence in the process, and also their psychological state.”
In addition, Ms Fairhall said being either too sympathetic or not sympathetic enough is something to be wary of.
“That also comes down to the person who’s conducting the investigation. Getting the right person for the right investigation is really important,” she added.
Letting someone else besides the investigator, such as the complainant or respondent, drive the process is also a critical error often made, Ms Fairhall said.
“For example, complainants can be very demanding about how they want the issue dealt with. That needs to be managed very carefully,” she explained.
“You want to be balancing the complainant’s interests with the interests of the organisation and the investigation, and you don’t want to be jeopardising their investigation and try to please one particular person.”
Ms Fairhall added that having poor or no documentation is a mistake seen in some investigation processes.
“Minds will differ about witness statements, for example. Some people like to take witness statements while they’re interviewing people, others take notes for their own use, others seek consent to record interviews. There’s no particular right or wrong way to do that,” she said.
“I guess the core goal in all of this really is, if you’re going to make a finding relying on information that’s being provided in an investigation, you need to make sure you’re going to be adequately documenting the basics of those findings and the information that you’re giving.”
Failing to make a call is the sixth mistake Ms Fairhall sees employers make in the investigation process.
“Often people run a fantastic, comprehensive, textbook investigation and they get to the end and just can’t get to the final fact-finding,” she said.
“It’s really important that investigators assess the evidence and make a finding as to whether the allegations have been substantiated. Sometimes they’re unable to be substantiated – that means, for example, that you just don’t have enough evidence to make a valid probability. That’s still making a call, but it’s really important that when you line up your investigations that you feel confident in the fact-finding of the investigation.”
The last mistake Ms Fairhall sees employers make is failing to implement recommendations at the conclusion of an investigation.
“Or failing to actually communicate the outcome of the investigation,” she added.
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