When a workplace investigation is required, whether this is outsourced to an external investigator or conducted in-house, it is necessary to be aware of the risks which could eventuate.
What are the key risks?
- Potential Breaches of confidentiality
Each party involved has the right to confidentiality. A breach of confidentiality occurs when other people/ parties are made aware of the investigation, which could cause “injury” to the complainant or the accused. Types of injury include reprisal, injury to reputation, defamation, ostracising the employee, physical altercations, or the exacerbation of mental health issues such as depression or anxiety. Of course, this is not an exhaustive list of consequences that could arise if confidentiality is breached.
- Failing to take “timely and determinative” action
In a situation where disciplinary action such as dismissal is ultimately required, delaying action could potentially prejudice the company’s position in any subsequent legal proceedings. This is because a tribunal is likely to find that, if the behaviour was sufficiently serious to warrant dismissal, it would/should have been dealt with as soon as possible. Further, if matters remain open and are not dealt with in an appropriate timeframe, there are greater chances of the issue causing conflict, uncertainly and humiliation within the workplace.
- Risk of litigation
- Risk of further costs
Certainly, in situations where a company tries to save on costs by minimising the expenses of investigations, and subsequently needs to “fix” the investigation by engaging external investigators or solicitors, expenses are likely to increase. In many cases, it is better to incur appropriate fees and expenses at the outset, rather than having to pay reparatory costs.
How can you mitigate these risks?
- Having a process map, which identifies what evidence should be obtained and which witnesses should be interviewed.
- The collation and review of evidence by the investigator.
- Interviews being conducted by an investigator, who also catalogues facts.
- Analysis of the information acquired, in addition to determining if additional fact-finding will be necessary.
- A determination, made by the investigator and relevant parties based on a review of the findings. Internal stakeholders will work with the investigator to determine how best to communication the decision to concerned parties.
- A resolution, where the investigator will document the steps and actions taken. The investigator will also arrange required follow-ups with involved parties to ensure that effective remediation has occurred as planned.
In addition, it is essential to ensure the investigative process is comprehensive and compliant with the requirements of procedural fairness, as well as sticking to the principles of confidentiality.