Six essential stages of a workplace investigation
Although the subject matter of a workplace investigation can often differ, the key stages of a reliable workplace investigation are usually the same. To help employers we have set these out below.
Understand and analyse the complaint
Take the time to ensure that you know what it is that you are investigating. Is it a specific incident or a pattern of behaviour? If the investigation has been prompted by an employee grievance or complaint, consider whether what is set out in the complaint is the subject matter of the investigation or if a wider investigation is required. The purpose of the investigation is to resolve the issue for the employer and this sometimes requires an investigation to look at far more than what an individual employee has raised.
Plan and prepare the investigation
Sketch out an investigation plan identifying what you believe the key issues to be and which individuals you will need to speak with as potential witnesses. Use whatever style you are comfortable with but be aware that it may be a document that you are required to produce in the event of litigation.
Interview the potential witnesses and collate relevant evidence
When interviewing the witnesses ensure that accurate notes are taken. Obtain the consent of the interviewee to the discussion being recorded. Most witnesses have no problem with this.
During the interview use a combination of open and closed questions. Allow the witness to provide the information that they believe is relevant but ensure that you secure the information from them that you require.
Have available at the interview any documentation that you wish to put to the witness. If they are to be asked about an email for instance, have it available for them to review and comment.
Consider what additional documents may be relevant following each interview. Investigations have a habit of expanding as new information is learned.
Review and evaluate the evidence
After concluding the interview stage and having obtained the documents that are believed relevant, carefully review the evidence that the investigation has secured and try to identify where there may be any gaps or weaknesses. If information is “missing”, consider if this is necessary and if so, how it may be obtained.
Revisit the initial complaint and consider whether the investigation and the evidence properly address that complaint.
Make findings of fact based on the evidence
Reach conclusions that can be supported by the evidence.
The appropriate test to use is whether on the balance of probabilities i.e. is it more likely than not that the subject of the complaint occurred. Make a note of the evidence that you have considered to reach each finding. If you are to be challenged on a finding reached, it is important that you can point to the reasoning behind it.
If allegations or complaints cannot be substantiated by the evidence, then note this as your finding. Avoid making findings of fact without evidence to support the same. Simply record the issue as unsubstantiated.
Prepare a report setting out the findings of the investigation
If required, prepare an investigation report setting out the findings of the investigation. This report should identify the basis for the investigation (i.e. the suspicion/complaint), what was investigated, which witnesses were spoken to, what documents were considered, what evidence was obtained and what findings of fact were made.
Try to make the report understandable and reader friendly. The intention of the report is not to win a ‘Pulitzer’, it is to bring a close to the workplace concern.
In some instances, the report will make recommendations for subsequent action. This however often depends on upon the terms of reference given to the investigator and the policies within the workplace.
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Disclaimer
Ashbrooke Law publications are intended to provide guidance and general information. They should not be relied upon as legal advice. Formal legal advice should be sought on matters of interest arising from this article.