What does the obligation on employers to conduct timely workplace investigations mean in the COVID-19 environment?
Employers are dealing with a myriad of critical business issues in response to COVID-19, including significant changes to working conditions, potential shutdowns and staff cuts. While it is well established that employers have an obligation to conduct timely investigations, what does this mean in the current environment?
The fundamental principles are unchanged: workplace investigations should be conducted without unreasonable delay to avoid a denial of procedural fairness, unnecessary damage to investigation participants and legal and reputational risks to participants and the organisation.
If delays do occur, they will need to be justified on a case by case basis. A delay might be reasonable where, for example, the organisation has been forced to shut down temporarily due to the current circumstances. But a delay is less likely to be justifiable where the organisation has simply reorganised its operations, for example, with staff working remotely instead of in the office or on site.
What is ‘timely’ may also depend on the nature of the allegations. Clearly the more serious the allegations, the more quickly they should be addressed. This is particularly important where there is a risk to an employee’s health and safety if nothing is done.
The mere fact that employees are working remotely is unlikely to be a justifiable excuse for a delay in witnesses being interviewed. As in any investigation, a witness should be available to be interviewed during normal working hours, whether working remotely or not. Workplace investigations regularly involve interviews by video-conference or telephone due to participants being in remote locations.
During this initial transitional period, from office/site based working to remote working, short delays of one to two weeks are expected and are likely to be reasonable, allowing time for employees and management to adjust to their new working environments and the available technologies.
The fundamental problem for an employer seeking to delay an investigation until employees return to their normal working environment is that we do not know when that will be. This could result in an investigation being delayed indefinitely, leaving an employer exposed to criticism from participants about a denial of procedural fairness and due process, risks to health and wellbeing in cases of alleged toxic behaviours, and a heightened risk of complainants seeking resolution of their complaint through legal avenues outside of the organisation. Getting to the truth of the matter also gets more difficult in investigations as time passes and memories fade, and as key witnesses potentially move on from the organisation.
What about investigations already on foot?
Where there are ongoing investigations, safeguarding measures put in place will need to continue or be adjusted where necessary. The fact that the two parties are no longer working together in an office does not necessarily mean that measures are not required to enable them to keep their distance or avoid contact (for example, measures to avoid the need for participation in joint video conferences or co-working on projects or initiatives).
Given the current upheaval, employers may find themselves trying to investigate complaints in which the complainant, witnesses or respondent have either been stood down or their employment terminated. In those circumstances an employer will need to consider whether to suspend or discontinue an ongoing investigation. What is appropriate will depend on the individual circumstances, however key considerations will include:
- whether the investigation can continue in the absence of a complainant or witness by relying upon alternative sources of evidence (such as emails, telephone records or other witnesses);
- whether the employer is obligated to continue with the investigation due to a health and safety risk to other workers; and
- whether it would be unfair to proceed with the investigation in the absence of a particular participant’s evidence. In circumstances where a respondent’s employment has been terminated, however, in many cases it may no longer be practical or necessary to continue the investigation.
Aside from the availability of participants, the other significant issue for employers will be the resources required to conduct and manage an investigation. While it might appear attractive to an employer to delay an investigation in order to free up resources or reduce expenditure in the short-term, as always such decisions require careful consideration of the risks involved, including any potential legal risk, and internal and external reputational damage that may follow.
Key takeaways for employers
- Despite the upheaval and uncertainty of the current COVID-19 crisis, if your organisation is attempting to get on with ‘business as usual’, an employer’s obligations to investigate employee complaints in a timely manner should not be postponed without good reason.
- Assess each complaint on a case-by-case basis to determine if an investigation should be undertaken without delay. Weigh the risks of delay (including potential legal and PR risks) against the reasons justifying postponement.
- Assess each complaint on a case-by-case basis to determine if an investigation should be undertaken without delay. Weigh the risks of delay (including potential legal and PR risks) against the reasons justifying postponement.
- If you decide to delay the investigation, communicate clearly with those involved and ensure that any necessary measures are in place to protect participants until the investigation process can be completed.
This article is not legal advice but based upon our experience as an organisation specialising in workplace investigations. For more information, please contact our national team of investigation experts at Q Workplace Solutions on 1300 944 049.
