I recently heard about a leader dealing with a misconduct allegation against one of his staff. To decide what do with the staff member in question, he put it to the vote. He surveyed the entire organisation. Everyone was asked whether they thought the person was guilty. No investigation. If you’re a people leader, an allegation of staff misconduct is a crisis you don’t want. To resolve it, an investigation is required. You have to make a decision. And that decision has to be made on hard facts. Not opinions. Nor feelings. Just facts. So what does a good investigation look like?
The first question you face is, who will carry out the investigation? You can investigate in-house. Or you can engage an external investigator.
One of the key factors to consider in this decision-making process is capability. Want to keep the investigation internal? You need a standard against which to assess your internal capabilities. Looking to outsource the investigation? You need to know what to look for in an external investigator.
To make the right decision, you need a clear understanding of what a good investigation actually looks like. To help you next time you have to make this decision, I’ve listed seven characteristics of a top quality investigation.
1. A discrete investigation is a good investigation
One of the first considerations is whether your chosen investigator can operate with discretion. Confidentiality is important for protecting the dignity of everyone involved. It also enables you to effectively manage reputational risk for your organisation.
You want to know that the person investigating the matter isn’t going to leak details of the investigation that would identify you.
But it’s more than that. Often there are people who are frightened to talk. What if your investigation includes a whistleblower? Allegations of corruption or insider threats will often involve risk. What procedures will your investigator put in place to ensure those people feel safe enough to disclose what they know? This could be something as subtle as the words your investigator uses. But it could also extend to the manner in which they contact your staff. Where they meet. What time they conduct interviews. Discretion is key.
If you’re engaging an external investigator, be sure to explore what experience they have conducting investigations of a sensitive and discreet nature.
2. A good investigator is people-centric
People should be at the centre of any investigation. An investigation needs to be thorough and robust. But it also needs to be conducted a way that preserves the well-being of everyone involved.
Complainant
Consider the person making the allegation. It can take immense courage to come forward. This process can be draining. The person making the allegation is putting their reputation on the line. There are often fears of retaliation, exposure and embarrassment. A professional investigation will allay these fears. It will instil trust in the complainant. It will make their welfare a priority.
Respondent
An investigator who approaches the matter with an open mind will also consider the welfare of the person against whom the allegation is made. Their personal and professional reputation is on the line. It’s possible they are also fearful of public humiliation. Or retaliation. Importantly, they should be considered innocent until proven guilty. It’s important to ensure that your chosen investigator has experience in dealing with people accused of serious wrongdoing. And dealing with them in an empathetic manner.
Witnesses
Many witnesses will also find the investigation process difficult. Interviews can be invasive, confronting. The investigator needs to proceed with caution. It’s crucial to consider the welfare of everyone involved.
Offer support
Consider offering independent professional support services. Sometimes even just knowing that resources like counselling are available can be enough to ensure a person feels emotionally and mentally secure.
If you must stand down the person against whom the allegations are made, consider how you can provide ongoing support. Don’t simply tell them they’re under investigation and send them home with no follow-up.
Maintaining contact
I spoke to a leader recently who was obliged to stand down a long-serving staff member after a serious sexual allegation was made. An independent investigation was underway. The staff member under investigation was devastated. The leader wanted to provide support but didn’t want to influence the investigation.
My advice? If you’re not the investigator, you can still maintain communication with your staff member. Avoiding discussing the details of the case. Do provide spiritual, emotional, mental and physical support. Keep a record of communications. Email or text message is a great way to do this. Recording your communication ensures transparency and enables you to counter any accusations of interference.
Engaging a private investigator
If you’re engaging a private investigator, look for someone with emotional intelligence. Someone who investigates in a manner that is firm and professional but who knows how to demonstrate empathy. Ask them about their experience in dealing with people who have experienced trauma.
3. A good investigation is objective
One of the worst things you can do is to appoint an investigator lacking in objectivity. It’s crucial for an investigator to be impartial and unbiased. Without these qualities, your investigation is likely to result in an unfair outcome for the people involved and your organisation.
This is a very real danger if you try to keep an investigation in-house. Even if the internal investigator is fair-minded, it’s easy for there to be perceptions of bias. And perceptions of bias can be very difficult to shake.
Think about whether your investigator has any sort of relationship with the people involved. Are they emotionally invested in the outcome? Do they have prior knowledge that could affect their ability to remain objective? Is there a chance there could be perceptions of a conflict of interest?
Bias in the education sector
In 2018 a New Zealand school erred significantly in an internal investigation. A teacher was accused of indecent assault. The school was aware that he had been the subject of similar allegations years before. These prior allegations had not been substantiated. But based on these prior unsubstantiated allegations, the school immediately dismissed the teacher. They assumed he was guilty without investigating. Several years later the school was heavily fined in New Zealand’s Employment Relation Authority.
Considerations for lawyers
Some employment lawyers like to conduct investigations for their clients. Consider the appropriateness of this approach. If your lawyer is taking instructions from you in relation to the employment process, can they be considered an impartial investigator? Many lawyers avoid this potential conflict. They instead refer the investigation process on to an independent investigator. It’s worth having this discussion with your lawyer.
4. A good investigation aligns with legal frameworks
It’s important to have a clear understanding of the legal framework (or frameworks) in which you’re operating.
Many allegations border on criminal activity. To determine whether or not a matter should be reported to law enforcement, you need at least a basic understanding of what constitutes a criminal offence.
An unfair outcome
I was recently made aware of an internal investigation in a New Zealand educational institution. A sports trip away turned ugly when several males played a “prank” on another male. The prank involved inserting an object into the anus of the victim without their consent. Under New Zealand criminal law, this is considered a sexual violation. An offence punishable by up to 20 years imprisonment. Tragically, the institution failed to report the matter to the New Zealand Police. Instead, they conducted their own internal investigation. The outcome for the victim was grossly unfair.
From employment to criminal
There are also matters which may begin as an employment investigation but end up before the criminal courts. Fraud is an example. The matter is initially investigated within the internal frameworks of your organisation. The legislation being considered at this point is employment law. The standard of proof is generally on the balance of probabilities. But if the offending is found to be significant, the matter may be escalated to law enforcement. This is a different legal framework. The standard of proof is now beyond reasonable doubt. The level at which your investigation was initially conducted might have been sufficient to meet the balance of probabilities standard. But not beyond reasonable doubt. This puts the remainder of the investigation in jeopardy. It’s important to understand the differences in legal frameworks.
Multiple frameworks
Many investigations will actually operate within multiple frameworks. An investigation in the education sector might have to take into account the internal rules of the school while also considering different elements of the Education Act (or equivalent) at the same time.
As you consider who will conduct your investigation, think about whether or not they understand the legislative framework in which they will be operating. If they don’t understand it, do they have the ability to get up to speed quickly?
5. Planning is crucial when it comes to investigations
Any investigation, no matter how big or small, should be well-planned. You’re probably familiar with the saying, ‘If you fail to plan, you plan to fail’. This is especially true in investigations.
A solid investigation plan should clearly state the objective of the investigation. Tasks should be identified. Prioritised. There should be a written risk management plan. A well-planned investigator should be able to give you an estimated timeline. They should know what resources they will require. And they should be able to give you a clear indication of cost. In some investigations it will also be necessary to have contingency plans in place for certain phases.
If your investigator doesn’t have a plan, there’s a very real risk you will get an investigation that is sub-standard. Unnecessarily lengthy. Costly. You might think you’re saving money by keeping the matter in-house. But what’s the hidden cost in the investigator’s time?
When outsourcing an investigation, think carefully about the way in which your investigator intends to invoice you. Be wary of an investigator who doesn’t appear to be well-planned and intends to bill you hourly with no cost estimate. A poorly planned investigation will be inefficient. Hours can easily be wasted. This means unnecessary costs for you.
6. A high quality investigation will incorporate proven interviewing methodology
If you’re going to keep the investigation in-house, think very carefully about your interviewing capabilities. Without specialist training, most people default to a “question and answer” approach. This is natural for the untrained investigator. But it can come across as confrontational and accusatory. A sub-standard interview like this can unintentionally cause additional trauma. What’s more, without any specialist interviewing skills, you’ll potentially find it difficult to obtain a detailed, accurate, reliable account. This means the information on which you base your decisions is flawed. If your first interview doesn’t obtain all the necessary information, you might be forced into an additional interview. This re-traumatises the interviewee unnecessarily and wastes time.
If you’re planning to engage an external investigator, ask them about their interviewing methods. Even with a compliant witness, it’s important to use a model supported by science. A structure that will elicit accurate information the first time.
Reluctant witnesses
Many investigations will also include reluctant witnesses. There are a variety of reasons why people might not want to speak to an investigator. Especially if the incident has been traumatic. Or there are risks that come with talking. The ability to persuade someone to provide information is a very specialised skill that not many investigators possess. If you think this is going to be a factor in your investigation, ask your potential investigator whether they have proven abilities in this area.
7. Accurate reporting is the crowning jewel of a solid investigation
The quality of an investigation can be significantly impacted by the investigation report. An investigation report needs to be succinct, objective and factual.
Succinct
I spoke recently with someone who had engaged an employment lawyer to conduct an investigation. The report they received back was 200 pages long. It contained detailed accounts of every witness interview. Extensive analysis of every applicable piece of case law. And a series of recommendations. Granted, some investigations require a longer report. Particularly if you’re dealing with a series of complaints. But in this particular case the investigator went too far. A report should be as brief as possible.
Objective
I’ve already outlined the importance of objectivity in your investigation. In fact, it’s possibly the most important element. This also extends to the report. A report should not contain opinions. Nor speculation. Nor emotive language. It must be fair, unbiased, objective. It must stick to the facts. If your investigator, internal or external, produces a report that is anything but objective, this is a sign that the investigation was below par. Beware!
Factual
Some people will disagree with me on this point.
Unless specifically requested, I don’t think an investigation report should ordinarily contain a recommendation on the action to be taken. To remain impartial, an investigator should remain focussed on gathering facts. Only facts. Those facts should then be presented to the decision maker(s) for consideration.
Investigators who make recommendations risk falling prey to confirmation bias. Confirmation bias is what happens when you make a decision or judgement early in the process. Then find evidence to confirm your initial reaction. You might subconsciously decide early in the investigation that you’re going to recommend no disciplinary action be taken. You then ignore evidence that disproves your judgement. And you give too much weight to evidence that confirms your decision.
An investigation should simply report the findings of the investigation.
What now?
Now you know what a good investigation looks like. The question is, what’s the best way for you to achieve an investigation that looks like this? Perhaps you need to boost your internal capabilities in one of these areas. Or perhaps you need to start thinking about an external provider.
If you would like to talk further about investigations in your organisation, contact us for a free and confidential discussion.
Better investigations result in fairer outcomes.
