While employers may be aware of their obligation to take workplace complaints seriously, uncertainty persists around investigating allegations of misconduct properly and fairly.

In this article, we shed some light on how “fairness” is defined and understood in the context of a workplace investigation, common mistakes employers make when investigating complaints, consequences of a shoddy investigation, and key takeaways that will help employers conduct smarter investigations that are both legally compliant and fair.

What is a fair workplace investigation process?

When an employee misconduct complaint is received, employers are legally obligated to conduct fair and timely workplace investigations with integrity, impartiality and respect. This generally entails investigating the circumstances before confronting or disciplining the employee in question.

“Fairness” will vary, depending on the circumstances of each investigation. Still, at a minimum, all parties and witnesses involved must have the opportunity to provide pertinent information and experiences, and the investigator must consider them. To ensure memories aren’t lost over time, investigations must be conducted in a timely manner. The sooner an investigation is complete; the sooner employers can take appropriate action. Finally, a fair investigation requires the investigator is unbiased and impartial. In some cases, an external investigator may be viewed as more neutral, as they are less likely to pre-judge the situation due to personal connections and preconceived notions.

Common Workplace Investigation Mistakes

Mishandling investigations can have severe consequences for complainants, employees named in the complaint, and your organization. Below are some of the most common mistakes companies make that can jeopardize a workplace investigation.

  • Failing to investigate after receiving a complaint of misconduct
  • Delaying the investigation, causing greater harm to the complainant
  • Acting inconsistently by treating similar problems differently
  • Failing to consider all of the evidence, such as key witnesses, emails, texts, surveillance or computer records
  • Rushing to judgement before obtaining all of the facts
  • Compromising confidentiality by speaking about the case with others who are uninvolved and do not have a ‘need to know’
  • Losing objectivity throughout the investigation, allowing personal feelings to impact outcomes
  • Using coercive interview tactics, such as preventing an employee from having a support person when requested, or leading the employee to believe that his or her cooperation is directly related to job security
  • Invading employee privacy by searching or monitoring employees without reason
  • Failing to document investigation and findings properly

What are the consequences of an unfair investigation?

  • Lawsuits: Brought by employees who submit complaints, or by employees who are disciplined or fired for alleged misconduct
  • Reputational Damage: Failing to conduct a fair investigation sends the wrong message to employees, managers, stakeholders, and even the public 
  • Harm to Employees and Corporate Culture: Decreased trust in your organization’s ability to protect employees and provide a safe workplace, resulting in lower morale, decreased productivity and higher turnover

Lessons for Employers

  • Never sweep complaints under the rug. It’s your legal duty and obligation to protect your employees, providing a safe place for them to work, which means investigating every problem and complaint fairly and promptly.
  • Be mindful of your duty of fairness to both the complainant and the employee under investigation.
  • To ensure a proper investigation is conducted, enlist an experienced professional. While it is not always necessary to hire an external investigator, an investigation will carry greater legitimacy and have more buy-in when conducted by someone experienced and skilled in the investigative process.  

Still have questions about how to conduct a fair, legally compliant and effective workplace investigation? Contact Cenera’s expert Workplace Investigation team today!

Contact us today to book a consultation!

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