The investigation process – Are we out of the woods yet?

So you’ve received a serious employment complaint such as a complaint of sexual harassment or bullying or discrimination, and decided it needs to be formally investigated (see our blog What’s Up: Do I need to conduct an investigation on whether you should in fact conduct a formal investigation).

You’ve decided on the right investigator (see our blog Private Investigations: Choosing a Workplace Investigator).

What’s next? How do you conduct a workplace investigation?

Can you separate the wood from the trees?

Are you, as Taylor Swift says, out of the woods yet?

Planning

The first stage is planning an investigation.

What are the allegations? What is this in breach of? Is there a Code of Conduct, policy, employment contract or piece of legislation that this breaches?

It is important to be careful about writing allegations that are as precise as possible, and to link it to a relevant document that it breaches.

What evidence can you gather? This could be documents, emails, CCTV footage, gate entries, screenshots, minutes of meetings, complaints, incident reports, medical reports, police reports, Teams messages, text messages, photographs – any piece of evidence that is relevant.  It is important to get these as quickly as possible before they are deleted or lost.

Who should you interview as part of the investigation? What order will you interview them? What questions do you have for them? What are the logistics for the interviews – will they be online or in person? When? How?

Finally, who are the key stakeholders and decision makers? How often and when will you update them?

Evidence gathering

Once you have considered the planning steps, the next stage is to actually gather the evidence required to decide if allegations can be substantiated or not.

Interviews with relevant witnesses are a critical part of an investigation process.  It is important to prepare for any interview with the questions you want to ask and ensure you have any evidence with you that you may wish to show to a witness.

During the interview, it is important to explain the reasons and expectations for the interview, then obtain the interviewee’s account of events that are the subject of the investigation.  At the end of the interview, it is important to review and summarise what was discussed, confirm any next steps, allow the interviewee to ask any questions, and remind the interviewee about confidentiality requirements and support that could be offered.

After the interview, evaluate whether any further interviews are required, whether any further areas to investigate have been identified, and how the information acquired fits into the wider context of the investigation.

Interviews with the complainant or impacted person need to be particularly carefully managed, especially if it involves distressing allegations or incidents.  Interviewers should also allow interviewees to have a support person with them to provide support (see our blog Don’t Speak: When an employee’s support person goes rogue).

Interviewing a respondent should also be carefully considered.  The allegations need to be put to them and allow the respondent to provide a full response.  Similarly, a respondent should also be permitted to have a support person with them during any interview.

Reporting

Once all the evidence is gathered, it is up to the investigator to consider the weight of the evidence.  Evidence can be in several forms, including oral, real, documentary and hearsay.  Oral evidence usually comes from witness interviews, where a witness describes what they know through their senses e.g. I saw or I heard.  “Real” evidence is evidence in the form of material objects such as a torn shirt, and where oral evidence is also required to explain the relevance or circumstances around the object.

Documentary evidence is evidence in written form, such as text messages or emails, which again also requires oral evidence to explain its relevance and context.  Hearsay evidence is a statement offered to prove the truth of the matter asserted.  For example, if Jo said that Hera did this, does this prove that Hera did it? This sort of evidence requires corroboration.

When preparing a report, the evidence needs to be analysed against each allegation to ascertain the weight of the evidence, who was credible, and which evidence supports or does not support a conclusion.

The standard of proof in investigations (other than criminal investigations) is the balance of probabilities i.e. whether the allegations are more likely than not to have occurred. 

However, it should be made clear that, in accordance with the principles outlined in the case Briginshaw v Briginshaw, more convincing evidence is necessary to meet the standard of proof where an allegation is particularly serious.

Conclusion

An investigator really needs to separate the wood from the trees in an investigation.  Often, there will be conflicting evidence or a “he said-she said” scenario.  A good investigator will have a clear scope to investigate, draft clear allegations, obtain evidence while maintaining a trauma informed approach, have access to all relevant documents and witnesses, carefully evaluate and analyse all relevant information and come to final conclusions in the report.  A finalised report should be clear to understand, contain conclusions based on clear evidence and be legally defensible.  The process should also be trauma informed and treat all participants with care and respect.

Maybe then, you will be … perhaps not quite in the clear, but at least out of the woods.

Remotely Legal can assist employers and boards on all aspects of employment law, including advising on difficult people issues, reviewing policies and assisting with enterprise bargaining.  Remotely Legal can train your boards and management teams on how to deal with incidents and investigations.  Remotely Legal can also be your fully outsourced HR and people legal team.

RL Investigations, part of Remotely Legal, are a team of highly experienced and qualified lawyers and investigators, who can function as your independent, external investigation team providing fast, comprehensive and reliable investigation reports, workplace culture reviews and suggestions for organisational improvement. RL Investigations can also help your internal HR or investigation team to improve their investigations and assist decision makers in considering the right factors when making key decisions.

This blog is general advice only.  Please obtain legal advice in relation to your specific circumstances.  This blog was written by a human so please seek permission if you wish to copy any of it.