Navigating the challenges of sensitive workplace investigations

1. Invest time to plan and consider the issues at the outset

Pre-empting the challenges from the outset will make the process smoother. Given the nature of the allegations, there is often a temptation to launch with speed straight into the investigation with witness interviews and document review. Without giving adequate thought to the scope of the investigation, the relevant legal considerations (including any local law considerations) and how to approach matters such as privilege, anonymity and reporting back, as well as how you will deal with any confidentiality leak or press interest, you can end up creating additional legal risk and hindering your ability to conduct a fair investigation. Careful planning at the outset of an investigation can save time, cost and risk in the long run.

2. Ensure the right investigators and decision-makers are assigned to the investigation and beyond

Carefully consider who will investigate the concerns, their terms of reference and who they will report to. Ensure the investigator has the right skill set, training and background to handle the matter and consider whether you should have more than one investigator so that you have diversity of perspectives – this could help to avoid unconscious bias creeping into the investigation process. Check for conflicts of interest (whether real or perceived). Keep this under review as the investigation progresses and new facts and concerns emerge.

Also think about who will investigate any subsequent grievance and/or disciplinary process – thinking about this at the outset will avoid difficult decisions later on, particularly if your investigators are senior individuals, which is then likely to mean you need equal or more senior people to be involved in subsequent processes.

3. There is no “normal” reaction to highly sensitive and personal allegations

Some individuals will shut down, others will show no emotion in order not to re-live the trauma, and some will engage with the very person they are now accusing in the hope of keeping their job or because they are in denial at that point. Don’t jump to conclusions about the veracity of allegations where an individual’s behaviour does not conform to how you assume you would behave in the same circumstances. This can be tricky, but relevant training in this area can be of huge benefit. There are a number of charities that can assist with training in this area. We have worked with The Survivors’ Trust on best practice in handling allegations of sexual assault.

4. Control the process

You decide who and how many witnesses to interview because you will be best placed to assess what is a proportionate investigation. Regardless of the pressures an investigator may experience from other stakeholders (including witnesses), ultimately it is their investigation and they are the party who will need to defend their approach and conclusions if challenged. As such, ownership over the process is key.

5. You have obligations towards all the parties: reporter, subject and witnesses

Sensitive investigations are difficult for all involved and can seriously impact team dynamics. Think carefully about individuals’ privacy rights and wellbeing as the investigation progresses (and beyond – see below) and, where possible, keep them updated on likely timeframes. Consider what feedback can be given to these individuals and what steps can be taken to move forward constructively at the conclusion of a matter.

6. Don’t forget the post-investigation issues

The matter is not closed after the delivery of the report: think about reporting back to the individual who raised the allegations (and what obligations you have in this regard), feeding back to third-party stakeholders and appropriate steps to mitigate the risk of retaliation. Consider whether there are any learning points about how investigations are run that the investigator considers other people in their team might benefit from. Getting feedback from those who have been involved in investigations (whether as investigator, reporter, witness or otherwise) can be invaluable in terms of shaping future processes and ensuring they remain fit for purpose.

If you would like to receive a copy of the recording of our webinar Navigating the Challenges of Sensitive Workplace Investigations: Tips and Techniques please send us your request