‘There’s no one size fits all’: The right way to go about fact-finding

Best practice takes an individual-first approach when it comes to workplace investigations, according to one employment expert.

In a recent episode of HR Leader Podcast, Harmers Workplace Lawyers executive counsel and team leader Jenny Inness detailed the process of workplace investigations during the current dynamic regulatory landscape.

Inness noted that the last year, especially, has seen higher rates of investigations, “more than I’ve ever had in a concentrated form in my practice”, offering increased regulation as likely contributors.

Noting that the Respect@Work reforms, changes to whistleblower protection and sexual harassment positive duty reforms, which “really puts the onus on employees to be taking proactive steps to deal with these issues in a comprehensive way when they come up”.

Inness said it is more important than ever to consider investigations in a case-by-case basis.

“Perhaps the starting point – and this is a step that I think is often missed – is to, first of all, think about whether or not an investigation is in fact fit for purpose of the problems and conundrums that employers are presented with,” she said.

“An investigation is a great tool and often serves employers very well, but it is not the only option.”

Inness acknowledged that employers can rush into investigations, failing to consider the scale of the fact-finding process that requires knowledge of who the witnesses will be, whether there is any physical evidence in possession, whether confidentiality plays a part, what the allegations are, and whether there is enough detail about the allegations.

This is central, not just for the employer, but the person at the centre of the investigation “who’s come forward, who feels that they’ve been aggrieved, who has raised the allegations”.

Once this process has been established, there is a bit of leeway with the next steps; however, the way individuals are approached is crucial.

“It’s really important that both parties, all parties to investigation, get the feeling and the sense that they are being heard and listened to and that their perspective is being understood. You need to make sure that time and effort and space is given for that to happen,” Inness said.

Acknowledging the pressure employers face with regards to time and getting an outcome quickly, Inness said that “investigations that are done properly are never done quickly”.

She explained that people within the process can also get dissatisfied with the time it takes, and that one way to deal with this challenge is to keep people informed throughout the process, which not only gives an estimated time of completion but also updates them should an issue arise that will likely set the process back.

Not only will this ease time and communication pressures, but it will keep people feeling part of the process – and less likely to take reactive legal action.

Inness also identified the employment relationship as another, often-forgotten challenge to navigate amid an investigation.

“Whether you stand people down from their employment while the investigation takes place, or whether they can continue to work and carry on their duties simultaneously within the investigation … I think employers can struggle with those arrangements,” she said.

“It can divide the workplace … you can end up with a situation where there’s sort of a demarcation between the sort of people in the workplace who support the applicant versus the people in the workplace who support the respondent. And the morale and culture flow-on impact can be really damaging in the long term.”

Further, Inness noted that the psychological impact of an investigation is often significant on multiple parties, including the organisation.

“You could end up with people becoming more unwell than they might already otherwise be – extensive sick leave, workers’ compensation claims … I’ve seen witnesses to investigations be enormously troubled and concerned about their identity being disclosed and retaliation … it is a really stressful process for a lot of people,” she said.

In this way, Inness urged employers to “get some good advice early on … no matter how you want to do your investigation”.

“The early planning and advice stage is really important to build up regimes around the confidentiality of the process, the integrity of the process and the planning of the process,” she said.

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