Rush Rush, Hurry Investigator, Give that Report to Me…
(or, Navigating Client Pressures to Expedite a Workplace Investigation)
Devan J. Corrigan, MIR, BA (Psychology)
Tova Bar-Dayan, MIR, CHRL, WFA
With apologies to Paula Abdul...
(Are we dating ourselves here?), in this blog, we will explore the challenges that external workplace investigators face when they are pressured by clients to expeditiously arrive at a conclusion and/or prematurely produce a written report soon after the interview phase has completed.
A View to a Kill (or, a client’s potential motivations to expedite an investigation)
If a client pushes the external workplace investigator to provide a fact-finding report quickly, it may be because the client believes they already know how the investigation will end up, which may introduce bias into an otherwise independent investigation and potentially painting the external workplace investigator as something other than impartial. It is critical for external workplace investigators to maintain objectivity and impartiality to ensure their findings are unbiased and above reproach. Placing undue pressure on the workplace investigator can make this difficult.
Alternatively, a client may want a fact-finding report provided to them in short order because they want to make decisions beyond the investigation, which is a practical matter. For example, an organization may want to use the fact-finding report to defend itself in legal proceedings, or to make decisions related to discipline (e.g., termination of employment). In such cases, the pressure to produce a quick fact-finding report may have negative consequences.
Oops, I Did It Again (or, the potential hazards of caving to client pressures on timelines)
Driven by client pressures, the investigator may feel rushed to complete the investigation and therefore may not interview witnesses who have important information to share. Alternatively, the investigator may fail to request (or fulsomely review) certain documentary evidence that might otherwise support or disprove the accusations. Either of the foregoing would be problematic because thoroughness is a foundational pillar of the investigative process and cannot be compromised.
Another concern is whether fairness may be compromised if a client asks for the fact-finding report unreasonably soon. Fairness is another foundational pillar which focuses on providing the parties with an impartial process, including the right to be heard. This could be impacted if the workplace investigator is rushed. For example, an external workplace investigator may decide to not provide the respondent to a complaint with the nature of the allegations made against them prior to the interview. As another example, an investigator might decide to rely on testimony from the complainant and their witnesses, possibly supported by documentary evidence, and (erroneously) decide that interviewing the respondent is unnecessary. In such cases, the external workplace investigator would be seen as unfair or biased against the respondent which could call into question the investigator’s objectivity and impartiality. This would be highly problematic and would render the investigation process unfair, potentially opening up the organization to legal challenges.
Keep the Faith (or, trust your investigator and the process)
It cannot be overstated that external workplace investigators play a critical role in helping organizations manage allegations and complaints of workplace misconduct. Leveraging their training and specialized experience, it is ultimately, the job of a workplace investigator is to conduct a thorough and impartial investigation, then report their findings to their client. These findings are then intended to assist the client to make informed decisions on how to handle workplace situations.
A thorough investigation inevitably requires an investment of time. Time to review documentary evidence (and time waiting for the client to produce same), time to schedule and conduct interviews (battling employee absences and varying degrees of cooperation, as well as potentially the introduction of unanticipated witnesses), time to review interview notes, perhaps time to have follow-up interviews to seek clarification and/or corroboration, etc. All of this evidence is gathered and weighed in preparation for assessment of the claims on the balance of probabilities.
More time generally means more thoroughness, however there is a point of diminishing return, meaning there is a stage when an experienced investigator recognizes that more time or more witnesses are not required and will not add any value to the process. Rest assured, external workplace investigators do not seek to drag their heels through the foregoing processes (all of which transpire before pen is put to paper for the investigation report); timeliness is always in the back of an investigator’s mind, as a key tenet of proper investigations and procedural fairness.
Closing Time (or, a succinct wrap-up)
For external workplace investigators, informing your client of a reasonable timeline for completion of the fact-finding report is a best practice. Doing so, will give the client at least an idea of how long the process is expected to take and the reasons for the time it will take. Importantly, the client will know this at the outset, before the external investigation begins. That said, the client should also be advised that the investigation may organically expand beyond the original scope, thus requiring additional time. An example of this is if new witnesses are identified and need to be interviewed, or new documentary evidence is raised in an interview and therefore needs to be reviewed.
As for clients, the entire reason for hiring an external investigator is to benefit from their experience. All investigators know the four fundamental pillars of successful workplace investigations and we have seen how client pressures to unreasonably expedite an investigation relate to three of them (fairness, timeliness, and thoroughness). Providing the external workplace investigator the necessary time to fulsomely conduct the investigation and produce a well written and defendable fact-finding report will save clients time and money down the line.