ten questions I always ask BEFORE starting a workplace investigation
As an independent, licensed workplace investigator, organizations hire me to investigate allegations or complaints of discrimination, harassment, violence and misconduct. And, unless you’ve been through a workplace investigation before, you may not know what to expect.
First, for each investigation, I identify a Key Stakeholder: a Leader within the company who is responsible for overseeing the investigation process and the person with whom I share findings, conclusions and recommendations for restoring the workplace.
And these are my top 10 questions I always ask the Key Stakeholder before I jump into the planning phase of the investigation process.
1. What’s the mandate | scope of the investigation?
Said differently, what are the specific allegations to be investigated? Not having a specific and clearly defined scope runs the risk of conducting a murky and muddy investigation. A workplace investigation is a fact-finding process to determine “what happened” and to determine if inappropriate conduct or behaviour occurred. It’s not an open-ended process where you try to uncover every mistake someone has ever made or every negative interaction someone has ever been involved in. An investigation is a limited process of discovery, not a witch hunt.
That said, it’s possible that during the investigation, new allegations come to light (or new incidents occur) that are related to the original complaint and need to be investigated, so it’s important to have an agreed upon process with the Key Stakeholder for navigating these junctures. If we are going to expand the mandate and scope of an investigation, it’s critical that the respondent (the person accused of the misconduct) is made aware of any new allegations so that they have a full and fair opportunity to defend themselves and so that the principles of procedural justice are not compromised.
2. What information or policies are relevant?
As part of the planning process, it’s important for the investigator to know the relevant policies and processes in place. For example, for allegations related to bullying or harassment, I would need to review the Code of Conduct, relevant policies (i.e. Respectful Workplace, Health and Safety, etc.), and any collective agreements.
This is an important step so that the investigator can follow the organization's established procedures and protocols, which fosters feelings of fairness among employees, and helps to build their trust and confidence in the investigation process.
3. What is the known relationship between the parties?
This is an important question to ask. If the two employees work closely together and there have been serious allegations of bullying, harassment or sexual harassment, it’s important to:
Ensure that all parties feel safe through the investigation process.
Understand how their roles intersect, what the power dynamics are, and how often and under what circumstances they are required to interact and communicate.
Depending on the specific circumstances, it may be appropriate to limit the contact between the two parties or temporarily reassign one of the parties (without making it feel punitive) until after the investigation has concluded. In some circumstances, when there are concerns related to personal or psychological safety, it may even be appropriate to place the respondent on administrative (paid) leave until after the investigation concludes.
4. What are the known risks to the investigation process, if any?
By nature, workplace investigations are incredibly stressful for all the parties and they often involve sensitive, contentious and traumatic allegations or events. As much as possible, it’s important for the investigator to be aware of any real or anticipated risks to the investigation process so that these can be planned for and mitigated.
I’ve had to anticipate and plan for many known risks, including:
Potential breaches of confidentiality (and the impact on personal and professional reputations)
Acts of retaliation and reprisal
New incidents or escalations
Exacerbation of mental health issues and events
Significant delays in the investigation
Key witnesses who refuse to participate
Managing perceptions of fairness
I’ve also had to recuse myself from investigations when I knew or had a relationship with one of the parties to the investigation, as I wouldn’t be perceived as neutral, fair or unbiased.
5. What steps have been taken and what has been communicated to the parties so far?
I need to know what steps have been taken so far and what information has been communicated to the parties, so I can address any gaps, and work to build trust, communicate openly and transparently with the parties.
It’s important for the investigator to know if the parties have been:
made aware of the complaint or allegations
made aware that an investigation is commencing (and when)
made aware of the specific allegations levied against the respondent. This is important from a procedural fairness perspective
made aware that an investigator has been appointed (and who)
provided with access to supports
advised that confidentiality is required (and what that looks like); and
advised that acts of retaliation and reprisal are prohibited (and what these look like)
6. What are the expectations related to confidentiality?
As a core value of investigations, confidentiality is one of the most important aspects to manage when conducting a workplace investigation. Complete confidentiality cannot and should not be promised to the parties. Doing so can limit the effectiveness of the investigation and can also compromise the value of procedural fairness to the parties.
If confidentiality is not preserved through the investigation process, the integrity of the investigation process can be compromised, trust and confidence in the process can be broken, reputations of the parties can be ruined and the work environment can become increasingly toxic.
As a workplace investigator, part of my investigation process is to require all parties to sign a written confidentiality agreement. For a confidentiality agreement to be meaningful and impactful, it needs to be enforced, so it’s important to get buy-in and commitment from the Key Stakeholder that action will be taken and consequences will be imposed swiftly.
7. What is the process for reporting acts of retaliation or reprisal?
Many employees are reluctant or fearful about participating in the investigation process because they are concerned that they will be punished for their participation in the investigation process. Retaliation is against the law and when it occurs, it must be addressed swiftly and stopped in its tracks.
If employees do not believe that they can count on reasonable protections through the investigation process, they will not be inclined to participate, which can affect the investigator’s ability to fully investigate the allegations and come to clear findings and reasonable conclusions.
All participants in an investigation should be advised that they will be protected from acts of retaliation and reprisals, and they should be provided with an independent channel (often the investigator) for reporting any acts of retaliation and reprisals against them.
8. How often and when should we communicate?
In my experience, all Key Stakeholders have different expectations and preferences when it comes to communications and updates related to workplace investigations. Some Key Stakeholders want frequent updates on how the process is progressing and others prefer to be updated as key milestones are achieved or when delays or problems arise that need to be navigated or managed.
It’s important to agree on communication and feedback loops and set these expectations early in the process so that incongruent expectations don’t become a distraction later in the investigation process.
9. What should the report include and who will read it?
It’s important that the investigator and the Key Stakeholder agree on what the investigation report will include and who will be privy to reading it. For example, does the Key Stakeholder want the investigator to just come to factual findings or do they also want the investigator to also provide a list of recommendations and key actions to help to restore the workplace, to support employees and teams, to rebuild trust and to move forward after the investigation?
It’s also important for the investigator to know who will have access to the report and who will read it so that confidentiality issues and concerns can be managed effectively and so that the report can be tailored to the audience it serves.
10. What are the anticipated | expected timelines?
In my experience, investigations are rarely linear and inevitably, there is at least one bump or unanticipated delay in the process. Investigations are a bit of a balancing act. As an investigator, my role is to figure out “what happened” and in order to do this, I have to investigate the complaint or allegations fully and thoroughly.
Thorough means:
Ensuring that the investigation process is broad enough that I’m able to develop a clear understanding of what happened (or what likely happened) but narrow enough so that I’m not interviewing every single employee in the organization.
Taking meticulous notes during the interviews conducted with the parties and thoughtfully and diligently examining and evaluating any evidence gathered through the investigation process.
That said, time is of the essence.
As an investigator, I also have an obligation to be timely because significant delays in the investigation can affect the parties’ ability and capacity to recall details about specific events that may be critical to the investigation. As well, workplace investigations are stressful and emotionally taxing for all the parties, so the sooner I can close off an investigation and come to a clear conclusion, the better it is for everyone involved.
Plus, a swift response by the organization demonstrates how committed managers and leaders are to creating a healthy and safe work environment for employees.
Also true: Timing isn’t entirely under my control.
While a timely investigation is always the goal, there are many factors outside of my control that can affect my ability to be timely including:
The availability of the parties
The complexity of the investigation
The number of allegations to be investigated
The number of witnesses that need to be interviewed
As they say — “People plan, God laughs.” So just remember that even the best laid plans may need some flexibility, some buffer, some space and some grace.
In my experience, it’s important to ask these questions up front so there are no surprises or unmet expectations on either side when you’re already down the garden path of an investigation.
March 23, 2021
Saira Gangji is an independent licensed Workplace Investigator at hrology in Calgary, AB. She investigates allegations of discrimination and human rights, harassment, violence and misconduct in the workplace. For more information about hrology and our process, see the work with me page.