Workplace investigations: Stamping out HR bias in high-level cases

Earlier this month, the ex-CEO of Abercrombie & Fitch faced allegations of exploitation of young men following a BBC investigation. 

Former chief exec Mike Jeffries and his partner Matthew Smith have thus far not responded to the BBC’s request for comments, however, the allegations shed light on the complex world of workplace investigations. 

Workplace investigations can be a double-edged sword for HR practitioners. On the one hand, you need to ensure that your employees are safe and feel protected at work, on the other it can mean a slew of claims and litigation – often causing conflict. 

Speaking to HRD, employment lawyer Kelly Gemelli, Founder of Gemelli Employment Law, explains some of the best practices and key considerations that HR professionals should keep in mind when conducting workplace investigations.

Determine the right investigator

One of the first considerations Gemelli highlights is the importance of determining the right person to conduct the investigation. 

“I always recommend that decision-makers understand who made the complaint. Who is the complaint about?

“If the complaint involves someone in high-level management, it may not be in the best interest of the company to handle that investigation internally." 

The reason? The appearance of bias. 

“If an HR director is conducting the investigation, are they really going to make a finding against the CEO or the CFO knowing that they report to that person?

"I'm often called as an external investigator because companies want to avoid the potential conflict of interest or appearance of bias."

Ensure a comprehensive investigation

Once the investigator is selected, it's essential to conduct a "prompt, thorough, and impartial investigation" ensuring the investigation plan is well documented.   

The process includes "meeting with the complainant, giving them an opportunity to be heard, finding out why they feel they were treated in an unfavorable way, making sure you understand the basis of their concerns, talking with witnesses, and then finally giving the respondent or the person accused of wrongdoing an opportunity to respond to the allegations."

Understand different perspectives

One common theme Gemelli highlights is the differences in interpretation of events. 

“Sometimes what I find is while one person interpreted the events in one way, another person may have interpreted the events in a different way,” she tells HRD. 

Hence, it is crucial to review the documentary evidence, and speak with witnesses who may have been present or heard about the events in question at or near the time the alleged conduct occurred. 

Stick to factual determinations

Gemelli makes it clear that workplace investigators should not be making legal determinations. 

“Legal determinations are for a judge or a jury.  Workplace investigators make factual determinations. Did a particular behavior occur? Was there a touching? Were inappropriate comments made?"

After gathering facts, investigators can also be consulted on policy-related matters. 

“On occasion, I’m also asked to make a policy determination whether or not certain conduct violated a company policy." 

However, she emphasizes that these decisions should focus on adherence to company policies and procedures rather than legal determinations.