In this final part of the internal workplace investigation series, let’s now examine the last set of risks highlighted in red below. If you are new to this series and would like to catch up on the previous blog posts, here are the links to Part 1 and Part 2.
Risk #1: Internal politics skewing outcome of investigation
Risk #2: Bias
Risk #3: Lack of time to effectively plan and conduct a thorough investigation
Risk #4: Company policies that may be lacking or hinder the investigative process
Risk #5: Lack of transparency
Risk #6: Lack of training
Risk #7: Conducting interviews by phone only
Risk #8: Poor documentation and retention procedures
Risk #6: Lack of training
The truth is, in-house investigators may not have received formal training to effectively conduct workplace investigations. I’ve found that there is a lack of company investment on this front combined with a lack of understanding that it is even necessary.
Without specific training on how to properly investigate complaints, build transparency to ensure fairness and objectivity in the process, liabilities are abound. Often times, a flawed investigation is worse than not conducting one at all.
From a different angle, training for managers and employees required by Bill 168 on workplace violence, harassment and bullying policies & procedures are lacking as well which ties into Risk #4.
Without a clear understanding of …
1) what procedures are in place;
2) the types of behavior to look out for;
3) what the expectations are;
4) what each individual’s responsibility is (employees and managers) in ensuring a harassment free work environment
4) what each individual’s responsibility is (employees and managers) in ensuring a harassment free work environment
it is difficult to address situations when they do arise. By human nature, we tend to avoid difficult issues. There’s a tendency to dismiss such complaints at the management level hoping they will somehow go away. Unfortunately, this only makes matters worse as a toxic work environment can then ensue which further exposes an employer to legal liabilities.
Tips for employers:
Ensure anyone you choose to conduct workplace investigations are experienced and properly trained. Address situations promptly before it impacts workplace morale.
If you decide to do it in-house, invest in training. Investigation training is available through the Human Resources Professional Association and other reputable vendors. They will provide your internal investigators with a good foundation to lessen your risks.
Risk #7: Conducting interviews by phone only
Budget, resource constraints and lack of training/knowledge are all common reasons I’ve come across to explain why interviews are not conducted in person.
As we all know, an individual’s non-verbal cues can also be telling than what is actually said. The need to build rapport and gain co-operation from interviewees is another important element of the investigative process. Both are valuable in complex investigations involving personal/sexual harassment and discrimination type cases where other data is limited and assessment of credibility may be necessary.
However, these extra insights are difficult to gather when interviews are conducted only over the phone. This in turn can impact the reliability of the findings.
Tips for employers:
Whenever possible, hold interviews in person. It shows respect for those involved and that you are taking the complaint seriously as well. In the event that that is not possible, video conferencing can be another option.
Risk #8: Poor documentation and retention procedures
No matter how diligent you are in conducting a workplace investigation, if the process is not documented or lacks completeness and objectivity, it will likely not hold water when challenged legally.
You need to know how and what to document as well. This is where training in report writing is critical so the investigation can stand up to scrutiny.
Once an internal investigation is completed, I’ve also found that little thought is given to centralize the investigation files from all sources (i.e. HR, Corporate Security, Manager etc.). As a result, important documents can be destroyed or go missing inadvertently.
I can recall in one company, manager’s files on employees were actually discarded at the end of employment as part of their document retention policy. Without supporting documentation, employers would be ill-equipped to defend themselves should a complaint arise.
Tips for employers:
As the adage goes, “document, document, document”. Ensure the documentation is written objectively, fact-based and thorough. Also, it would be a good idea to review your document retention procedures to ensure investigation files are centralized and retained for a reasonable period of time even after an employee departs which is usually when they are more likely to file complaints.
As you can see, the workplace investigation process can be fraught with risk if not done properly. These are simply some key pitfalls I’ve gathered from a HR view relating to internal workplace investigations (although not an exhaustive list by any means).
The good news is, with some due diligence and a commitment to lessen those risks, employers would be better positioned to support their actions arising out of an investigation which will ultimately safeguard their company brand and their bottom-line.
The content shared in this blog post is for general information only and does not constitute legal advice.
Got your own experiences to share on this topic? Send us a comment!
At Strategywise HR, we understand the HR challenges our clients face and the workplace laws that affect you. If workplace issues are keeping you up at night, or you need an experienced and objective workplace investigator, please contact us at 905-879-9994 for a free consultation.
Our top priority is to help you make informed people decisions that reduce risk and costly exposure.
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