How will your company respond to a workplace allegation? With the recent increase in media coverage regarding sexual harassment by high-profile individuals, more employees are reporting their own experiences of workplace abuse.
While some companies may choose not to conduct an investigation unless driven by legal obligations or other factors, many organizations recognize that prompt and thorough investigations serve both their interests and those of the employee who raised the concern. This blog post provides insights on considerations for conducting workplace investigations when responding to an allegation of misconduct or wrongdoing.
Understand the Company’s Legal Obligations
Before you begin an investigation, you need to understand the company’s legal obligations and how these may influence the scope and timing of the investigation. Some common legal obligations that may inform the scope of or timing of the investigation include:
Investigation of discrimination or harassment claims.
Investigation of employment contract violations: If an employee is accused of violating the terms of their employment contract (e.g., misappropriation of funds, breach of fiduciary duty), the employer is obligated to investigate.
Investigation of workplace health and safety issues: Employers are obligated to investigate workplace health and safety issues and promptly correct any hazards identified.
Knowing Your Company’s Culture
As part of the investigation, you’ll want to understand the company culture. What are people’s perceptions of the company and their place within it? Knowing how people feel about the culture of the organization will help you make informed decisions about actions such as disciplining an offender.
Even if your company has never had a complaint brought against it, you should still consider how cultural factors can impact the results of an investigation. For example, if your company culture is highly driven by competition and pressure, there may be an increased likelihood that someone will fail to report misconduct out of fear of losing their job or being overlooked for promotion.
Knowing The Parties Involved In A Workplace Allegation
As soon as possible after receiving a report, you should begin to build a general understanding of the parties involved. Who was present during the event? Who was not? Who has a vested interest in the event occurring and who doesn’t?
These may seem like basic questions, but you’d be surprised how easy it is to get sidetracked and overlook them during the investigation.
Know your company’s resources and capabilities
Before beginning an investigation, you may want to gauge the company’s capabilities and resources related to investigation capabilities. For example, is there an HR person or team that handles investigations, or is that primarily an executive’s job?
Does your company have the resources to conduct a thorough and timely investigation? These factors may impact the scope and timing of the investigation. For example, if your company handles investigations internally and doesn’t have access to outside investigators, you may have to consider whether a prompt investigation is still possible and determine if that is the best course of action given the circumstances.
Ensure Timing Is Right
If multiple reports of harassment or other misconduct are brought to light, you may want to initiate a prompt investigation of all reports. However, be careful not to overreact to media attention and public sentiment. In other words, don’t try to get ahead of yourself and initiate an investigation just for the sake of doing it. Instead, respond as quickly as possible to each report as it comes in.
If multiple reports are brought to your attention at the same time, your best bet may be to initiate an investigation of each report and then begin to synchronize your investigation efforts across all parties.
Defining The Purpose Of The Investigation into Workplace Allegations
As you begin to investigate, you should define the purpose of the investigation. For example, the investigation may be intended to:
Correct the underlying issue(s) and/or remedy any harm that may have been caused.
Bring clarity to an ambiguous situation.
Help with any potential litigation (by helping an organization prepare for litigation, investigations can often help to reduce the likelihood of litigation).
Resolve questions or concerns an employee or colleague may have.
Assist in determining the next steps or courses of action for the organization.
Defining Your Objectives And Key Questions To Be Answered By The Investigation.
Next, you’ll want to define your objectives and key questions to be answered by the investigation. Some questions you may want to consider include:
What happened?
When and where did the event occur?
Who was involved?
What were the circumstances leading up to the event?
What were the circumstances surrounding the event?
What were the actions of the parties involved?
What were the words and actions of other people in the vicinity?
What were the words and actions of people who were not in the vicinity?
What is the impact of the event?
What is the intent of the event?
What is the motivation of the event?
What are the appropriate responses?
Determining Who Will Conduct The Investigation And What Resources They’ll Have Access To
Once you’ve considered the general investigation considerations, you’ll want to determine who will conduct the investigation and what resources they’ll have access to.
Your options for conducting the investigation may vary depending on the circumstances and severity of the incident. For example, you may want to consider:
Conducting an internal investigation: If the person who reported the misconduct wishes to remain anonymous, you may choose to handle the investigation internally. If you choose to handle the investigation internally, you’ll have full control over the process and the report may or may not ever become public knowledge.
Hiring an outside investigator: You may choose to hire an outside investigator, like a private investigator, to conduct the investigation. This may be the best choice if the incident is severe and should be handled by someone who is trained and skilled in handling workplace investigations.
Using a neutral third party: You may want to use a neutral third party to conduct the investigation. This may be the best choice if two parties are in dispute.
Considerations When Selecting An Investigator Or Counsel
The best investigator or counsel for your investigation will vary depending on the situation, but there are some general considerations you may want to keep in mind as you are selecting an investigator or counsel. Some considerations to keep in mind include:
Local laws: Be sure that the investigator is licensed in your state and meets the minimum requirements (if any) for conducting workplace investigations.
Representation of the parties: Make sure the investigator can represent all parties involved in the investigation. This is especially important if the parties are in dispute with each other.
Independence: Make sure the investigator is independent and can conduct the investigation without bias or prejudice.
During The Investigation: Preserving Evidence And Safeguarding Reputation While Gathering Facts
Once you’ve begun the investigation, there are a few things you’ll want to keep in mind while you’re gathering facts. First and foremost, you’ll want to make sure that you are preserving evidence.
You will need to conduct interviews with all parties involved in the investigation. If multiple people were present during the event, you’ll want to conduct separate interviews with each party so that each has an opportunity to provide their side of the story.
Should you require an external private investigator, Jolasers have been conducting workplace investigations in Melbourne and Regional Victoria for in excess of 16 years and can offer you a professional investigation involving the most complex of cases.
Check out this informative workplace investigation video
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