What happens when your organisation requires an investigation?
Planning and scope of the investigation
Once your organisation has decided a workplace investigation needs to be commissioned, contact L&C and we will ask some basic questions. We’ll then review the complaint and any other associated materials to determine the seriousness, breadth and scope of the investigation.
We will recommend, among other things:
- That our terms of reference should be broad;
- What allegations need to be investigated;
- The particulars of the allegations;
- The seriousness and breadth of the allegations;
- How many parties will need to be interviewed; and
- The type and breadth of the relevant evidence to be obtained and analysed.
Once these factors have been considered, we will agree the scope of the investigation with you, and the cost.
Before interviewing the relevant parties, we will collect and review as much evidence “on the papers” as we can. The type of evidence we consider at this stage will vary depending on the complaint and the circumstances: there might be emails or text messages to consider, policies and procedures, video footage, HR files.
Gathering and reviewing the evidence before we start interviews lets us properly prepare for the interviews we undertake. This lets us ask the right questions of each interviewee so we can reach a conclusion as to whether it’s more likely than not that what is alleged has occurred by weighing all the evidence, as efficiently as possible.
Interviews with the relevant parties
We start our interview process by interviewing the complainant, wherever there is one. Increasingly, organisations now commission investigations even though there’s no complainant because employers have a positive obligation to ensure the safety of the workplace. Where they have concerns about safety (raised anonymously or otherwise), but there’s no complainant willing to come forward, organisations should commission an investigation to protect its employees, consistent with its obligations.
Where there is a complainant, we start our interviews with them. Where there’s not, the process might be a little different. Regardless, our approach must ensure procedural fairness to all parties and for that we need a full understanding of the complaint and to ensure that we have captured any allegations made against a respondent. We must give a respondent an opportunity to respond to all of the allegations against them.
Once the detail of the complaint is clear, we interview any other witnesses involved, and the respondent.
All our interviews are recorded, then transcripts are created, and we then ask each interviewee to read over their transcript and sign it. The recordings provide certainty and providing the transcripts to the witness gives them an opportunity to review their statement.
Analysing the evidence
Next, our job is to analyse all the evidence (including the transcripts) and decide whether the allegations against the respondent are more likely than not to be true.
We consider whether there is sufficient evidence to substantiate each of the facts alleged is it more likely than not that what is alleged to have occurred, actually occurred, as alleged.
If the answer is “yes”, this is supported by evidence that has led us to that conclusion. We must next decide whether the substantiated conduct breaches your organisation’s policies and procedures, or the law.
Finally, we consider what recommendations we might make for your organisation. Depending on the terms of reference you’ve provided to us, these recommendations might be directed at:
- How to resolve the complaint; and/or
- Any systemic issues we’ve noted throughout the investigation.
Systemic issues might relate to how to prevent the circumstances which gave rise to the complaint from occurring again, or errors or gaps in your policies and procedures. As to how to resolve the complaint, we won’t tell you what disciplinary consequences should follow but rather if the complaint is made out and where it sits in terms of seriousness.
Investigations are very difficult processes for participants and all of those affected. Our recommendations consider that complaints must therefore be an opportunity to allow experts to consider the incident itself and how you might improve and address issues that arose so it doesn’t happen again.
The recommendations we make may include any actions we believe your organisation can or should take to prevent inappropriate workplace issues arising again.
Provision of the report and decision making
Having established whether the allegations in the complaint are made out, L&C will provide its investigation report back to your organisation. This will include a summary of our findings and usually organisations will only provide the summary to the participants. It’s unusual for a whole investigation report to be disseminated.
The relevant decision maker in your organisation will then need to decide what outcomes, if any, should flow from L&C’s findings.
The decision maker will need to consider:
- Whether the allegations have been made out or not;
- The seriousness of any conduct determined to have occurred;
- What policies or procedures were breached, if any;
- The precedent that the organisation intends setting on such matters;
- L&C’s recommendations; and
- The communication process that should follow after the investigation for the parties involved.
The decision maker will then need to communicate the outcomes of the investigation, continue to be procedurally fair to those involved, and follow any relevant disciplinary procedures.
Investigations are stressful times for all involved, however where there is clarity as to, and confidence in the process, employers are able to take clear and decisive action and to consider how best to prevent such issues arising again.