When issues come up in the workplace, sometimes it’s necessary to commission an external investigator. An effective external investigation will establish the facts of what has occurred, and can be relied on by the employer as a basis for any subsequent actions.
There are a number of key considerations that an employer should work through.
1. Is an investigation needed at all?
Investigations are essential when you need to establish facts in cases of alleged misconduct, bullying or harassment. However, investigations take time, cost money, and can be a divisive force in a workplace.
Consider the nature and severity of allegations, the time, cost, and cultural impact of a formal investigation, and potential alternatives. Sometimes interpersonal conflicts, even if they are labelled as harassment or bullying, may respond better to mediation, coaching or facilitation. Consider such options with affected employees as an alternative to an investigation.
2. Is it necessary to engage an external investigator?
External investigators, usually lawyers or specialist investigators, add impartiality and expertise. However, they come at a cost and may have limited availability. In some cases, there may be a senior manager who is independent of the matter and has the skills to conduct the investigation (perhaps with some legal support in the background).
It’s best to engage an external investigator when possible internal investigators may need to be witnesses or could be perceived as having a bias, where there are complex or technical issues that require specialist knowledge, or if the subject matter is high-stakes and carries reputational or regulatory consequences.
3. Terms of reference
For an investigation by an external investigator, terms of reference are needed. These define the investigation’s blueprint. Core elements include:
- The scope of the investigation.
- Procedural steps for the investigation, including how evidence will be gathered, who will be interviewed and how the interviews will be recorded, which documents will be provided to the investigator, and who they should submit their report to. Also consider if the investigator should provide a draft report to anyone for them to comment on before a final report is submitted.
- Confidentiality and privacy protocols.
- Deliverables – is the investigator just to make factual findings? Should they also determine if there have been any policy breaches? Do you want them to make recommendations?
It’s important to consult with relevant participants (i.e. complainants and respondents) on draft terms of reference before these are finalised.
4. Selecting an external investigator
It’s crucial to get the right investigator. In selecting an external investigator, evaluate the expertise needed, track record of the investigator, availability, costs, and style.
As with the draft terms of reference, it’s important to consult with relevant participants (i.e. complainants and respondents) on the proposed investigator and check there are no conflicts of interest. In New Zealand, investigators need to either be a lawyer or a licensed investigator.
5. What to do during an external investigation
It’s helpful for the external investigator to have a key contact who can provide logistical support for interviews and document management. Aside from this, the employer should stand back and ensure the external investigator can maintain independence.
It’s crucial to avoid anything that could be seen as you trying to influence the investigator (and all communications with the investigator are discoverable). Beyond this, the employer should provide support to participants and check on their wellbeing.
6. Acting on the external investigator’s findings
It’s important that the employer considers and scrutinises the investigator’s report and findings before accepting them. Consider the reliability of the findings and whether the terms of reference have been followed before adopting the findings. The employer can then decide on appropriate actions, which could range from no formal action to commencing a disciplinary process, or setting up a mediation or facilitation to address interpersonal issues.
Remember to communicate outcomes and next steps (if any) to relevant parties, while respecting confidentiality and privacy.
Beyond the immediate issues and people involved, it’s also useful to consider if there are any wider issues at play, and whether any general policy updates or training may be of benefit.
Special thanks to Partner Scott Wilson and Senior Associate Jonny Sanders for preparing this article.
If you would like to discuss any of the above further, please get in touch with a member from our Workplace Investigations Team.
Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.
