Workplace investigations are inherently stressful, time consuming and emotionally exhausting. Legally, employers have a duty to investigate, and it’s so important for organizations to get workplace investigations right, especially when dealing with sensitive issues such as discrimination, harassment, violence and misconduct in the workplace. To help you get a workplace investigation right, here are the ten mistakes to avoid making:

1.     Lack of clarity.  

It’s critical that employees have clarity on expected behaviours at the organization, and of the policies, procedures and supports in place for those experiencing discrimination, harassment, violence and misconduct in the workplace. Often, an organization’s policies will not clearly articulate the process for filing a complaint or the investigation process, so employees are left feeling confused and unsupported.

2.     Poor planning.  

As the saying goes, “fail to plan, plan to fail”. When an organization receives a complaint, their instinct is sometimes to jump right into an investigation without planning the investigation process, first. Failing to plan can result in critical steps of the investigation process being missed, which can lead to a flawed investigation.  A few examples of critical steps that can be missed are:

• failing to review and follow the procedures and outlined in the relevant policies

• failing to define the mandate or scope of the investigation – i.e. what is being investigated, and what isn’t.  When the scope of the investigation isn’t clearly defined, there’s risk of “throwing everything and the kitchen sink” at the investigation. In these situations, the process can quickly move from ‘investigation’ to ‘witch hunt’

• failing to investigate each allegation, failing to include relevant witnesses and/or failing to gather, review and analyze key evidence

3.     Waiting too long.  

Significant delays in carrying out the investigation process can add pressures to an already highly stressful situation including: heightened tensions and mistrust, lowered morale or productivity, and lack of confidence in the process. As well, with the passage of time, key details and information can be lost or forgotten by the parties and witnesses. In the past, courts have not viewed significant delays (without good reason) kindly.

4.     Rushing the investigation. 

Arguably, just as damaging (if not worse) than waiting too long, is rushing the investigation process. Depending on their complexity, workplace investigations can take a great deal of time and there are often pressures (internal and/or external) to come to a decision quickly. The risks of rushing a workplace investigation can include:

• failing to verify key information

• failing to give the parties the opportunity to fully respond to the allegations and/or evidence against them

• missing or ignoring key evidence

• using assumptions to determine findings

A rushed and flawed investigation can impact perceptions and the integrity of the investigator, leadership, the investigation process, and the organization.  

5.     Failing to treat the parties fairly.  

One of the core values of workplace investigations is ensuring fairness to both parties throughout the investigation process. For example, both the complainant (person filing the complaint) and the respondent (person accused of the misconduct) should be provided with the opportunity to fully respond to allegations (or counter-allegations) made against them, both parties should be given the opportunity to identify witnesses that may corroborate their version of events and both parties should be offered support throughout the investigation process. 

6.     Overpromising on confidentiality. 

Confidentiality can be a sticky topic when it comes to workplace investigations because complete confidentiality cannot and should not ever be guaranteed to the parties. Promising complete confidentiality to the parties could limit the effectiveness of the investigation and may compromise the value of procedural fairness to the parties. The investigator should assure the parties that information sharing will be limited to the extent possible while also balancing the need to conduct a full inquiry into the facts of the situation. The investigator should outline expectations of confidentiality and the consequences for breaching confidentiality to the parties in writing.

7.     Real or perceived investigator bias.  

Bias (real or perceived) can have damaging effects on workplace investigations. Internal investigators may not be seen as neutral or independent, as they may have pre-existing relationships with parties to the investigation, they may knowingly or unknowingly be influenced by personal interests and agendas and they may be seen to have some sort of stake in the outcome of the investigation. If an investigation is perceived to be biased or negligent, it can result in serious and costly financial and emotional consequences for all parties.  To avoid the appearance of bias, many organizations employ independent, external investigators to conduct workplace investigations.

8.     Failing to reach a conclusion.  

Workplace investigations are very rarely simple, linear or black and white.  Most often, they are complex, wavy, winding and painted in every shade of grey. A common mistake is when an investigator fails to come to a thoughtful and reasoned conclusion because of conflicting or contradictory versions of events. The reality is that wishy wash conclusions aren’t useful to anyone. A trained and experienced investigator knows how to assess the credibility of the parties to come to findings and conclusions. Assessing credibility requires the investigator to review all the data and information collected during the investigation process, assess and weigh it as a whole to determine whose version of events is more likely to have occurred.

9.     Improper documentation.  

The investigator should be thorough and diligent about taking detailed notes throughout the investigation process. Memory alone can’t be relied upon, especially when the investigation is complex, there can be multiple allegations and hundreds of pages of evidence to comb through.  Information that should be documented throughout the investigation process includes:

• any organizational documentation, policies, procedures or processes that were examined and helped to inform the investigation process

• a written summary of the incident (and relevant details)

• prepared interview questions

• detailed interview notes (including date, start and end time, location, attendees)

• any evidence submitted and relied upon (including who provided it, when and under what circumstances)

As well, the investigator should make detailed notes of any decisions made throughout the investigation process and the rationale for such decisions. Where appropriate, these decisions should be documented in the investigation report.  

10.  Failing to close out the investigation properly. 

Taking the time to close out the investigation process is so critical to its integrity, but it’s a step that organizations often glaze over.  At the end of the investigation process, it is expected and appropriate that the complainant(s) and respondent(s) are informed (verbally, in writing, or both, depending on the policy) of the outcome of the investigation – i.e. if there was a finding of discrimination, harassment, violence or misconduct, and a general description of next steps and supports that will be put into place for the parties. When closing out the investigation, it is critical the privacy and confidentiality of the parties be respected. For example, it is neither required nor appropriate to share any disciplinary or corrective actions being imposed on the other party. Communications should be done in a manner that is respectful and shows genuine care and compassion for the parties.

While this isn’t an exhaustive list of the mistakes I’ve seen organizations make when it comes to workplace investigations, these are the most common. If you’re conducting a workplace investigation, I recommend going through this list a few times throughout the investigation process - it’s a good gut check and it can help you to avoid common mistakes and pitfalls! 

November 17, 2020

Saira Gangji is an independent licensed Workplace Investigator at hrology in Calgary, AB. She investigates allegations of discrimination and human rights, harassment, violence and misconduct in the workplace. For more information about hrology and our process, see the work with me page.