A guide to best practice investigations

by External26 Aug 2013

HR is often the first port of call when a complaint or allegation is made against their organisation or its people. Joe Morris outlines how following a few simple steps can help you ensure that subsequent investigations are conducted according to best practice.

There is no such thing as a ‘standard’ workplace investigation. Complaints and issues that we have seen make their way to HR in recent years have ranged from allegations of fraud, corruption and misuse of company resources, to inappropriate conduct, assault, harassment and leaks of information. Such variety means it is impossible to prepare for every eventuality, but there is still lots you can do to prevent a minor headache becoming a serious problem.

Fail to prepare, prepare to fail

As a first step, take some time to prepare your team for the possibility of having to conduct investigations. A poorly planned investigation can be immensely damaging, so we would encourage all companies to ensure they have in place a process for receiving and investigating complaints. In doing so you might need to be mindful of any requirements under industrial agreements. As part of your planning process, identify employees who have the expertise to conduct investigations. Where skills gaps are identified you can look to plug them through training of employees or the identification of external third parties who can assist with investigations as required.

It also pays to ensure your company has clearly defined policies and procedures in place regarding employee conduct, including a code of conduct and, preferably, an investigations policy, and that they have been effectively communicated to all staff. It can be extremely frustrating for an investigator to obtain apparently clear evidence of wrongdoing, only to find that the person concerned has not actually broken any company rules! Employees should therefore be obliged to familiarise themselves with all policies and make a written acknowledgement of their adherence to them.

Preserving evidence

Once an issue occurs that requires investigation, your planning and preparation will pay dividends in terms of helping you to launch a timely investigation. A key first step is to preserve potential evidence, which may include footage from security cameras, access card records, electronic data on laptops, tablets and mobile phones, and physical evidence. In the case of electronic evidence, seize and isolate devices immediately; you do not want to find yourself in the position of losing vital evidence because an employee has had the opportunity to delete – either wittingly or unwittingly – emails or documents.

Interviews

Once you’ve collected and reviewed all the available evidence, you are likely to want to interview both witnesses and the subject of the investigation. Interviews can be a complex area full of potential pitfalls, but a bit of structure and pre-planning goes a long way. All interviews should involve two investigators, to provide corroborating evidence and ensure accuracy of reporting. You should also offer interviewees the option of a support person. To ensure procedural fairness, both witnesses and the subject of the investigation should be informed of why they are being interviewed and given a broad outline of the investigation process. The subject should also be given reasonable notice of their interview and told that an allegation has been made against them and they are being given an opportunity to respond (though this does not extend to telling them who has made the allegation).

Keep a record

Finally, once the interviews are complete, your lead investigator should produce a written report of their findings and recommendations. In many cases this will be kept on file and never referred to again. However, in some cases – and assuming it is not covered by legal professional privilege – it will need to be produced to an employment tribunal should the person concerned dispute the outcome of the investigation. If you have followed best practice as above and clearly documented the investigation, you should be in a good position to defend your findings and subsequent decisions.

 

About the author

Joe Morris is Associate Director, Corporate Investigations, Control Risks joe.morris@controlrisks.com +61 2 9279 0099

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