Do you wake in the morning and scream What’s going on???? Or is that just you singing along to 4 Non Blondes?
You’ve received a complaint of sexual harassment. You’ve heard something on the grapevine that James in sales only promotes his mates. You saw the punch up at the Christmas party. The accounts just don’t seem to add up. Or someone casually mentioned ‘Was Bree acting a bit strange in that meeting?’.
What do you do?
The first question to ask is – if this was true, would it amount to a breach of the law, our code of conduct or policies or our company values? If the answer is yes, then you should consider a formal investigation. Your gut may also be telling you something is off, but you’re not sure if it’s just you, just them or a wider problem – why are all the young females leaving that site? Why isn’t anyone saying anything? If it could amount to a wider problem, then consider conducting an investigation.
Assuming you need to investigate something, here are some top tips to consider:
Firstly, start with the end in mind. This is not about having a pre-determined outcome. This is about considering:
a. Who will read an investigation report? Both internally and externally.
b. What are the potential outcomes?
c. Who will be the investigator – someone internal or external?
d. Who will be the decision maker if any disciplinary decision is required? Is this someone local or overseas?
e. Who needs to know about the investigation? Try to keep this group as small as possible.
f. Should the investigation be conducted under legal professional privilege?
g. What is the scope of the investigation?
h. Are there any particular factors or sensitivities to consider e.g. allegation is against a senior person, people are off sick with stress, there is already an external complaint etc.
Secondly, frame the allegations. This may be from a written complaint or an interview with the complainant. You may require further information. Consider:
a. Clearly describing what was alleged to have been done or not done.
b. What is this in breach of? What part of the policy or code of conduct or legislation?
c. What happens if there are new issues that arise? Do you extend the investigation or launch a new one? Do you need to re-interview a complainant?
Thirdly, if you fail to plan, you plan to fail. Planning the next steps is critical for an investigation.
a. Is there any relevant background information?
b. What evidence can you collect first? E.g. CCTV, documents, emails, financial records, time and attendance records, employment contracts and policies?
c. Decide on witnesses – who are they? What is their availability? What order should you interview them? What questions will you ask? Have you reminded the witness about confidentiality and retaliation? Does the witness need support?
d. Timeline – when does the investigation have to be completed? Are there any factors that influence this e.g. leave?
e. Communications – who needs to know what and by when?
f. Are there any red flags to follow up? Are they in scope for the investigation?
Finally, the hard bit. Analysing the evidence and writing the report.
a. Consider the weight of the evidence. Especially in a he said/she said scenario. Is it credible? Who do you believe? Is there supporting evidence?
b. Are any follow ups required?
c. If there is something that is out of scope or could not be explored, explain the reasons for this.
d. More serious allegations need to be proven to a higher standard.
e. If there are organisational learnings or takeaways, make comment about these separately.
You don’t need to scream ‘What’s Up?’ unless you’re singing along to a fabulous song. An investigation can help you find out what’s going on, and deal with it before it escalates any further.
Remotely Legal can assist employers and boards on all people issues including conducting independent investigations or preliminary inquiries, training your staff on investigations, providing employment law advice on external complaints, advising on disciplinary outcomes, defending any external claims and implementing any recommendations such as changes to contracts and policies or training on harassment, bullying and discrimination. Feel free to contact us here.
This blog is general advice only, please seek legal advice in relation to your specific circumstances
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