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2. Maintain independence during a workplace investigation.
I will often be asked by clients if they should get an outside investigator in to deal with the complaint. Here, my advice will depend on the complaint itself.
If the allegations are directed at a CEO, director level or even a senior member of staff, alongside the complaint being serious or sensitive, then the advice will usually be to find an independent investigator from outside the organisation.
Complainants can sometimes feel better when they know an independent person is going to look at the complaint. However, workplace investigations can face delays while you source an external person. Ensure that you regularly update the complainant with any major updates.
Furthermore, you might want to give them some input into who investigates. You may achieve a faster investigation internally but be sure to get the approval of the complainant where possible to prevent any future claims of lack of impartiality.
If you require a disciplinary process after a workplace investigation, it is important to only appoint one HR director or another director to conduct it. This is because there might be appeals to the outcome and you will need other senior staff available to undertake the appeal stage.
If you have a regular law firm, you might want to consider instructing a new and independent firm to avoid allegations of bias. If you do go with your regular firm, perhaps think about a solicitor within that firm whom you do not have a close relationship with.
Similarly, think about someone who does not share office space with your usual lawyer. This will help to maintain the integrity of the investigation.
3. Keep it real.
Complainants often demand that they remain anonymous when they make a formal complaint. The advice to my employer clients is not to make any promises or give reassurances of either namelessness or confidentiality. Although they might try to keep it a secret, the reality of most workplaces is that news travels fast.
Another point to consider is the nature of the allegation. Let’s say it is one of criminality, such as racial discrimination or sexual misconduct. There’s no way to investigate this properly without knowing:
- what is said to have transpired;
- the identity of the victim
In some cases, I may advise an employer to separate the investigation into a fact finder, who will report on the findings they make. They can then separately task a more qualified individual to make changes or deliver recommendation on how to resolve the complaint.
You should handle recommendation internally, as your own members of staff will have a good understanding of what is and is not possible.
With more topic complaints about, race, sex, environment or security, the client will want to avoid reputational damage if they try to hide it.
It’s very easy to publicise mismanagement to the world which, despite quickly using injunctions, can cause irreparable damage!