Investigation purpose is more than just determining what happened, says lawyer
Workplace investigations have become an integral part of modern HR practice. Whether responding to allegations of harassment, discrimination, bullying, workplace violence, or misconduct, employers are increasingly expected to investigate complaints thoroughly and fairly.
A well-conducted investigation does more than determine what happened. It provides the foundation for significant employment decisions, helps maintain employee confidence in the process, and can withstand scrutiny if the matter later reaches a court, arbitrator, or a human rights tribunal.
Unfortunately, I continue to see investigations where otherwise reasonable decisions are undermined by avoidable errors in the investigative process. Based on my experience reviewing investigation reports, here are five common mistakes HR professionals should avoid.
Treating credibility as a popularity contest
One common mistake investigators make is assuming that several witnesses telling a similar story must be more credible than a single witness who disagrees. Credibility, however, is not determined by a show of hands.
Credibility is a central aspect of every investigation. At its core, credibility is the degree to which an individual’s statement is believable and accurate, based on an assessment of their honesty, and the reliability of the information they provide. Honesty is formed by intent; what were the individual’s intentions in providing the specific information? Reliability is the accuracy to which the individual’s memory function regarding the issues being investigated.
Investigators face a risk when accepting one group of witnesses’ evidence simply because multiple people told a similar story, without adequately examining inconsistencies between those witnesses.
Credibility is more than counting witnesses. Regardless of the number of witnesses, each witness must be assessed on their own credibility. I have encountered situations where a number of people provided the same story about a respondent. However, when I dug deeper, I became concerned that there was a conspiracy to oust the respondent from their employment. Investigators should be vigilant about spotting signs that multiple individuals may have a common strategy, rather than common evidence.
Consistency of the evidence is only one factor in assessment of credibility. Investigators should also consider whether witnesses may share a common interest, bias or motivation. Multiple witnesses repeating the same account does not necessarily mean the account is accurate. One malicious intention can taint the evidence and lead to erroneous findings of fact.
Conducting a credibility assessment should be flexible and account for ‘softer’ factors. These include things like cultural differences, anxiety, fear, or personality traits.
Lasty, investigators should explain why they preferred one witness over another, not simply state that they did.
Failing to ask difficult follow-up questions
An investigator that accepts written statements and witness answers at face value instead of exploring obvious inconsistencies or ambiguities faces another risk.
An investigator is not a passive note-taker. A good investigator will approach an interview with curiosity and be respectfully skeptical of everyone.
Having awkward conversations with an interviewee may prevent the investigator from asking difficult questions; we don’t want to make people feel uncomfortable. A good way to set yourself up to make it easier to ask difficult questions is to start the interview by warning the individual that your job is to ask hard questions and fully understand their evidence.
When stuck on what to say next to elicit more information, the investigator does not have to take an aggressive approach. Instead, the investigator can say: "Help me understand...", "Earlier you said...", "That seems different from..." or "Can you explain..."
I've found that the most revealing answers often come after a witness says, 'I don't know,' and the investigator asks one more respectful follow-up question.
Looking only for evidence that supports your conclusion
In the investigation report I recently reviewed, one of my main criticisms was that the report summarized evidence harmful to my client while omitting evidence that supported her position or provided important context.
It is normal for an investigator to naturally develop early theories about a case. This is not a bad thing. In fact, this is part of the investigator’s job to consider, explore, and assess all possibilities.
There is, however, a danger of confirmation bias, which is a tendency to seek, interpret, recall and rely on information that supports only the investigator’s theory, rather than looking at it from an objective perspective. In other words, once investigators develop a working theory, every subsequent interview carries the risk of unintentionally confirming that theory rather than testing it.
Confirmation bias can cause a reader to lose confidence in the investigation if the full spectrum of evidence is not considered. This is especially true when contradictory evidence is absent from a report.
It is, therefore, critically important to document, consider and comment on both evidence that supports the allegation and evidence that contradicts it. This will help the investigator create a balanced investigation report rather than an advocacy piece.
Forgetting that procedure matters
Even a well-reasoned conclusion can become difficult to defend if the process itself appears unfair. Delayed interviews, leading questions, poor interview techniques, and failures to follow internal policies can bring the investigation process into question.
Procedural fairness in the investigation process is not about making the process longer. It's about making it more reliable.
If the employer has an investigation policy, it must be followed. Ideally, the policy has timeframes for completing the various steps in the process. Sticking to the timeframes it important to all parties.
Strong interview techniques for an investigator are critical. The investigator needs to know who should be interviewed, understand what are leading questions, avoiding language suggesting the outcome has already been decided, and documenting investigative steps. It is also critically important to provide individuals with an opportunity to respond to information that contradicts the information they previously provided.
The best investigators I've worked with are comfortable changing their minds as the evidence develops.
Writing conclusions instead of reasons
The difference between a persuasive investigation report and an unpersuasive one often comes down to a single question: Did the investigator explain their reasoning? HR professionals may underestimate how important written reasons are. This is not simply stating conclusions, but explaining the “why.” A good investigation report should answer why was this witness believed, why wasn't another witness believed, why was contradictory evidence rejected, and why were competing explanations discounted?
Some of the weakest investigation reports I've reviewed reached reasonable conclusions but failed to explain how the investigator got there. Readers should be able to follow the reasoning process. This will lend credibility to the investigation report and make it harder to contest.
Workplace investigations are rarely easy. They often involve conflicting evidence, strong emotions and significant consequences for everyone involved. Perfection is not the standard.
Employees, adjudicators, and courts expect is a process that is objective, thorough, and fair. Investigators who approach every interview with curiosity, remain open to competing explanations, follow established procedures and clearly explain their reasoning will be far more likely to produce findings that withstand scrutiny.
In the end, a good investigation is not simply about reaching the right conclusion. It is about demonstrating that the conclusion was reached through a process that was balanced, thoughtful and fair.
Trevor Thomas is a partner and co-founder of Ascent Employment Law in Vancouver.
