Sometimes the first step is the most important in getting a workplace investigation right, and the decision on whether to manage the process internally or bring in external advisors can challenge even seasoned HR directors. Janice Rubin, with employment specialist Rubin Thomlinson, examines the key issues informing those decisions
The call on whether a workplace investigation should be conducted by someone internal to the investigation or by an external third party often belongs to those who occupy a senior human resources role within the employer’s organization. Second only to what to do with the parties after the investigation is completed, how the investigation gets done is often the most difficult aspect of the process to resolve.
We are often part of these deliberations, either as employment counsel to employers or as that third party an organization is thinking of using. In our view, there are many investigations that should be conducted internally, and there are many internal investigators who are able to deliver a fair and thorough process.
However, there are times when an organization is best served by using the services of an experienced workplace investigator. This is usually when there is an aspect to the case that is particularly challenging. Consider the following factors:
1 COMPLEXITY OF THE INVESTIGATION
A simple investigation involving a single complainant, respondent and fairly straightforward allegations may be something the organization can handle thoroughly and quickly. By contrast, an investigation with five complainants and multiple allegations spanning several years against three respondents may simply be too time-consuming for someone inside the organization to take on. In addition, there may not be anyone within the organization who is skilled at managing an investigation with multiple moving parts.
What we mean here is actual bias, or the perception of bias. This is an obstacle in every internal investigation as the employee investigator is certainly not a stranger to the organization and may have difficulties being seen to be neutral. That being said, there are many cases where internal investigators do a superb job and the obstacle is overcome. However, there are many circumstances where no matter how skilful the internal investigator is, if he or she proceeds, the process will look biased. As an example, if the complaint is against someone in human resources , it is often something that should be investigated externally.
3 AVAILABILITY OF A SKILLED INVESTIGATOR
It is a workplace paradox that on the one hand legal decision makers are subjecting workplace investigations to increasing scrutiny and criticizing employer’s processes while on the other hand, many HR professionals have never been trained to conduct investigations. This skill set is not intuitive and must be learned and practiced. If at the time a complaint is made, there is no one in the organization who is able to effectively conduct an investigation, it is time introduce a third party who can.
4 COMPLEX RELATIONSHIPS
It is one thing to ask an HR manager to investigate a peer in another department, it is quite another to ask that same person to investigate the CEO against whom sexual harassment allegations have been made. The gap between positions may be too large to allow the investigator to investigate with confidence and authority. That person must have the freedom to ask difficult questions, interview witnesses and reach conclusions without fearing for their job. In addition, the employment relationship of both respondent and investigator may continue. If the investigator is internal, he or she may feel awkward dealing with the respondent going forward. The relationship may become irreparably strained as a result of the investigation. If this dynamic is present, an external investigator is often the best choice.
5 LEGAL ISSUES
If the employer expects the investigation or the consequences of the investigation to become legally contentious, using an experienced external investigator, especially one who is a lawyer, may be the best choice. This is because the stakes are higher and you want to ensure that your process looks fair, thorough, and objective.
For example, if the employer expects to terminate an employee for just cause, if allegations of assault are true, the report must be rock solid. The findings must be justified and the process must be beyond
6 DIFFICULT SUBJECT MATTER
Internal investigators must be honest with themselves and with their organizations in terms of their comfort level dealing with certain types of allegations. For example, consider a complaint where the allegations are that the respondent made racist remarks and frequently swore. The investigator must use this language during the investigation and in the report. If this makes the investigator uncomfortable, he or she should not do it, and an external investigator should be retained.
As far as whom to retain, it is important that you find a highly skilled investigator with a proven track record. Ask other senior HR professionals for their recommendations, as well and the employment lawyer you work with.
Janice Rubin is co-founding partner of the Toronto-based employment law firm Rubin Thomlinson LLP.
This feature is from HRM Canada's July issue. Download the issue to read more.