We received a great response to our recent paper published on our website “13 Reminders for Effective Workplace Investigations” which we posted on our website as a free download. Many of our website followers downloaded the paper and sent us comments and questions on a variety of issues. “Who makes the best workplace investigator” was by far the most frequent question. By “who” of course the questioners meant, what position should the investigator hold? Many employers use in-house or external resources; managers, Human Resource staff, lawyers, auditors, private investigators, security staff or dedicated in-house investigators. However, which one is the best choice? The answer is a familiar one – it depends.
It is understood; the person the employer selects to conduct a workplace investigation should be properly trained and experienced in the type of workplace investigation for which they are being considered. Carrying out a forensic investigation of suspected fraud by an employee against the employer requires different knowledge and experience than an investigation of an alleged racial slur by an employee against a customer or client. Therefore, we all agree investigators require appropriate training and experience for their specific task.
Selection of an investigator also depends on a variety of other considerations. They include; size of organization, whether unionized, cost, the brand vulnerability, sensitivity of alleged action, the position of the person(s) involved with the complaint within the organization. The availability of a suitable investigator within your organization is key.
An early decision is whether to appoint from within the workplace or someone external to the workplace. We recommended in our paper that an investigator should not be someone that any of the involved parties directly reports to or has a workplace relationship with e.g. the local HR representative who provides services to the managers and employees in the involved work unit. A better choice is a manger or HR person from another division or location.
Using an in-house manager or Human Resources representative does have the advantage of being less costly than external resources. In-house resources also can commence an investigation quickly and more readily gain the trust of other involved managers and witnesses. Even if some employers may be large enough to have a dedicated number of in-house investigators, covering off every type of possible investigation may be a challenge. Rightly or wrongly, many employers also believe that using in-house resources will provide greater confidentiality.
A union representative once complained to me about the appointment of a HR representative to investigate a sexual harassment complaint. She had no problem with the person being qualified to do the investigation. Her concern was that in the future the HR representative may be influenced by her experience during the investigation if she was involved in future job competitions that included the respondent to the sexual harassment complaint. The same concern may apply for local managers.
Answering the question, when it is best to use an external investigator also attracts that familiar answer – it depends. Employers that use investigators that are not competent risk eliciting a negative response from the Courts, tribunals, and arbitrators. If the employer does not have a trained and experienced investigator available in-house, then an external investigator is the only choice. Fraud, theft of physical assets, theft of intellectual assets require specific training and experience. Likewise, workplace discrimination, harassment, or violence in the workplace require additional training. Just because someone holds a particular position within your organization related to employee relations does not automatically qualify them as a competent investigator in the eyes of the Courts.
If it is likely the facts and evidence found during an investigation will assist in preparing for a legal case, consider using a law firm. The Courts in Canada have ruled that if a lawyer is solely conducting an investigation then their findings may not be privileged. Have your current legal advisor give you an opinion whether you need the “solicitor-client” protection hiring a law firm to conduct the investigation will provide.
Using private investigators and external HR firms, who employ trained and experienced investigators, is another option many employers consider. From the perspective of the complainant, respondent, manager, union and your other employees, using this option would address any concerns that the investigator is “beholden” to the employer. Their only connection to the employer is being engaged to carry out the investigation. Once completed and their report filed, they move on. Private investigators in several provinces, including Ontario, have to pass an exam, undergo an annual background check before licensing by the Province.
There are probably other options employers can use when confronted with the need for a workplace investigation. Giving the selection some advance thought; checking to see whether you may have appropriate internal resources currently available or getting training for suitable internal investigator candidates, may be time well spent. Alternatively, make contact with external resources in advance so you know who to go to when something develops that requires an immediate response.
We love to get feedback when we offer our thoughts on various issues of interest to our friends and colleagues. Please send us your comments and share suggestions we may have missed. You can download the original paper “13 Reminders for Effective Workplace Investigation” from the Download section of our website. No sign up require unless you want to receive notice when we offer new papers or training in your area.