Investigations: The Rules of Engagement
Before you undertake an investigation have you ever thought “am I the best person to conduct this investigation?”
This is probably the most important question, and one that many organisations overlook. So how do you know when to engage an external investigator or keep it in-house?
As a general rule, the more serious the behaviour and risk to the organisation, the greater the need to consider engaging an external party to conduct the investigation.
There are a number of preliminary elements that should be considered when determining who, how and when an investigation should take place:
What is the nature of the allegation/complaint to be investigated;
Can you apply the rules of Natural Justice, Procedural Fairness and avoid bias (perceived or otherwise) as an investigator;
Is the matter likely to result in disciplinary action if matters are substantiated;
What is the probability of litigation, dispute or third-party notification; and
What does the Company Policy require of the process?
While you should never dismiss your in-house capabilities, what needs to be established is if your capacity is suited to the investigation that needs to be undertaken.
Years of working collaboratively with business, and in-house teams, tells us that there are some core questions businesses should be considering to ensure that investigation gets the best possible outcome for all parties (including your internal investigator).
Rule Number 1: Subordinates should NOT investigate those that hold higher positions than them in the organisation.
This is particularly relevant if they are a direct report!
Rule Number 2: If you have already initiated an investigation into the matter or employee(s) previously, you should NOT investigate again.
The absence of bias is a key element to an investigation, and if you have already investigated a matter relating to the individual then you may be subject to perceive or unconscious bias.
Have too many hands been in the ‘pie’ before you even start the investigation? Sometimes because so many people know of previously raised concerns, or even just the current concern, there just isn’t anyone who can conduct the investigation who has not had their fingers in the pie.
Remember even if someone is impartial, if it is perceived that they have any allegiance to a particular outcome, your investigation is already compromised.
Rule Number 3: The assigned inhouse Investigator must have the capacity for a timely process.
Investigations can take a lot of time when done correctly. Unless the organisation has a dedicated investigations/complaints person/team then sometimes investigations can be drawn out or not get the attention they require as someone is trying to “fit” it around their real job.
Rule Number 4: Investigations require training
There is great skill in being able to conduct an investigation that is fair, transparent and follows the accepted process. There is even more skill needed to evaluate and analyse the evidence, know when to ask more questions and know when, and when not, to seek more evidence.
When the livelihood of someone hangs on the quality of the investigation, there is an extreme amount of pressure to get it right.
Rule Number 5: Decision makers should not be investigators
Those that will be responsible for implementing the recommendations of an investigation (eg: training, disciplinary action, mediation), or those that act as escalation points (for matters that might result in termination), should not be responsible for undertaking investigations.
Investigations should be considered as part of the broader workplace process or policy requirements. Personnel should be assigned to process in a way that still allows for the ‘separation of powers’
If you cannot satisfy these basic process ‘Rules’ – then perhaps it’s time to look at partnering with an external consultant.
