Workplace investigations: Best practice tips for getting them right

When you’re faced with a serious workplace complaint, how do you go about conducting an investigation?

If thinking about it makes your palms sweaty, you’re not alone.

“This is a massively challenging area for the HR profession, more so now than has ever been the case, largely because of the new bullying laws that came into effect on 1 January,” said People+Culture Strategies managing principal Joydeep Hor.

“The reason why it is so challenging is that very few HR professionals will have been necessarily properly trained or qualified to conduct best practice investigations internally and even as lawyers, we do a lot of these investigations and there are always things that we learn.”

“It’s something that I would rate right up there as one of the top two or three ‘watch outs’ for HR professionals because I think, by definition, it requires them to venture outside their comfort zone.”

One of the common mistakes that HR practitioners made was ending investigations too quickly in cases where things appeared “grey” and there was no clear-cut evidence of what did or didn’t happen, said Hor.

“What they often forget is that as far as employment law is concerned, HR managers are entitled to form a view about things on what’s called a balance of probabilities and that’s recognising that in a lot of circumstances, there’s not going to be clear-cut evidence of what did or didn’t happen.

“That’s very important that the HR professional, when they’re doing the investigation, doesn’t just say, ‘Well it’s grey, we don’t have any admissions, there are no witnesses, so we can’t comment one way or the other’. If that was the view that was taken, you’d hardly ever be able to form a view that there was misconduct in many instances because it’s very rare that people are going to admit wrongdoing.”

Making sure the process involved the right amount of formality was important, as was making sure the right people were interviewed.

“Sometimes, an investigation is conducted with the view to talking to all and sundry about even the most minute details and in so doing, it’s brought a whole group of people into the loop who didn’t have to be brought into the loop.”

HR professionals needed to be aware of not just the technical aspects of the investigation, but they needed to be able to form a view early on as to whether the case involved a level of sensitivity or complexity that warranted bringing in externally help.

“There’s nothing worse than getting it wrong internally and then having to justify all of your actions as part of an unfair dismissal claim,” said Hor.

The ideal goal was to bring matters to an end as quickly as possible, without compromising the quality of the investigation.