Workplace investigations are underpinned by the general legal principles that are owed by an employer to an employee, the most significant of which is ensuring procedural fairness. One of the elements of procedural fairness is the impartiality of the investigator. This article will discuss challenges faced by organisations and investigators when attempting to conduct an impartial workplace investigation.
What is an impartial investigation?
For any organisation undertaking a workplace investigation, there is an inherent risk an investigation participant may perceive the investigator and/or the process as biased, either in favour of a particular individual due to an already established relationship, or by a particular desired outcome for the organisation. While this perception may be unfounded, it can lead to accusations that an investigation is not procedurally fair.
The key to managing this potential for bias is a two-step process, first the appointment of an impartial investigator and second ensuring the investigation process is impartial.
Tips on appointing an impartial investigator
Aside from having the necessary expertise and availability to conduct the investigation, an investigator must be perceived by the parties as being fair and impartial. Three key issues to consider when appointing an investigator are:
- Choose an investigator who has no direct involvement in the complaint being investigated, including the potential to be a witness in the investigation;
- Where possible, choose an investigator who has no prior work history with any of the investigation participants, and in particular has not conducted any previous investigations involving the investigation participants; and
- Choose an investigator who does not have a close relationship to any of the investigation participants, for example a direct line of reporting or a personal relationship or close friendship.
If there are concerns about the perception of an internal investigator’s independence, the appointment of an external investigator may be a better option.
An impartial process – 6 common challenges
When an investigator is appointed, it is important that they maintain their impartiality. This involves following relevant lines of enquiry and considering all the evidence with an open mind. There are a number of potential traps an investigator should avoid when attempting to conduct an impartial workplace investigation, in order to preserve neutrality. These include:
1. Not allowing any views expressed by an instructor, such as their opinion of any of the parties involved or of a particular desired outcome, to influence the investigator’s assessment of the evidence or their findings. One way this can be managed is by having a triage process so that any initial briefing is conducted an individual separate to the investigator.
2. Keeping an open mind during the investigation. Often an investigation will commence with the evidence provided by a complainant, without any context or challenge to their account. It is natural to want to accept that evidence as no counter narrative has been provided, and this could impact an investigator’s approach to the rest of their investigation. As a result, it is crucial not to form any conclusions until all the evidence has been obtained, from the complainant, witnesses, and the respondent.
3. Resisting attempts to influence either the directions or conduct of a thorough and fair investigation. For example, it is for the investigator to identify relevant witnesses to be interviewed and, while there may be practical constraints, limiting an investigator’s access to witnesses may impact on the impartiality of the process. An impartial investigator needs to take steps to obtain and consider all of the relevant evidence available. If there are any shortcomings or missing evidence, the investigator should address these issues in their report.
4. Treating all participants, including the complainant and respondent, in the same objective manner. When making judgements on participants’ credibility, that judgment should be based on identifiable factors, such as a previous inconsistent statement, as opposed to being based on presumptions such as, “they made the complaint therefore they must be telling the truth.”
5. Communicating with participants in a transparent and non-judgemental way. While the role of the investigator is to obtain and test evidence, it is important that the participant does not feel the investigator has predetermined the matter and is simply looking for evidence to support that predetermined conclusion. This can be managed through asking open ended questions, such as “and then what happened?”, as opposed closed or leading questions, such as, “you then shouted at her, didn’t you?”.
6. Exercising extreme caution before making any changes to an investigation report requested by an instructor, particularly in respect of any findings. The investigator’s impartiality is key to ensuring the integrity of the findings and that impartiality should not be undermined by a perception that changes had been made in order to accommodate an instructor.
Conclusion
For an investigator, impartiality is a key factor in ensuring an investigation is procedurally fair. Maintaining that impartially, while not always easy, is fundamental to the conduct of an impartial workplace investigation. It cannot be compromised. Ultimately, if the investigator is not impartial, the parties to the investigation, and other stakeholders, will lose confidence in the process and the outcomes.
Investigators wishing to learn the skills and strategies for conducting an impartial workplace investigation may wish to consider attending our 1 day workshop, How To Conduct An Effective Workplace Investigation.
