When an organisation wishes to conduct a procedurally fair investigation to support informed decision-making, it must decide who should conduct the investigation, with the question being should it be internal (this can be HR staff or managers) or external consultants? When making the decision to outsource an investigation (or not to), there are a number of considerations that will impact the decision:
1. (Perceived) Bias and the need for independence
The investigator must be fair and impartial and be perceived by all participants to an investigation to be free of bias.
Internal management and HR staff are the most common investigators of workplace misconduct. They know the most about the organisation’s policies and procedures and understand the culture of the workplace, however the main drawback of internal investigators is perceived bias.
Managers may know the participants and may have participated in other managerial processes (such as performance management or decisions regarding promotion), and may also have socialised with them. HR staff may have already assisted the parties with the matters in dispute and may have allegiances with participants which affect their impartiality.
Internal staff run the risk of being in a position of conflict or perceived bias. Maintaining impartiality is crucial to the success of an investigation and in appointing an external investigator this can be ensured because they are less likely to be perceived as possibly biased.
Given the high importance the courts attach to procedural fairness it is imperative that an investigation is conducted accordingly, and that the investigator has the requisite skills and understanding to apply a fair process.
An organisation may not have staff who have the knowledge and experience in conducting investigations and therefore an external investigator, who has the skills and experience would be the preferable choice.
Where the matter that has arisen is serious and has the potential to lead to serious disciplinary action or litigation, the organisation needs to demonstrate that it responded to the matter with independence and objectivity and for this reason external investigators may be preferable to internal investigators.
Investigations require prompt action which means an investigation is a dedicated activity and is not a task that can be fitted around other commitments.
An investigation is time consuming and can go on for months and involve many hours of interviews and consideration of evidence, and internal staff who have competing priorities on their time may have difficulty in completing an investigation in a prompt and timely manner, and the organisation may prefer its staff to focus on their normal tasks.
5. Disciplinary decisions
Ideally the investigator who is responsible for determining what has happened, and whether a breach of policy has occurred, is not the same person who makes disciplinary decisions.
This is to avoid any claim by the parties that the investigation was designed to achieve a predetermined outcome and may otherwise mean that the investigation is open to challenge on the grounds of procedural fairness not having been applied.
All of the above considerations should be weighed when deciding whether to outsource an investigation or to have internal staff conduct the investigation.
About Melanie Roberts
Worklogic works with employers to resolve workplace complaints and create a positive culture at work. Please contact Melanie for an obligation-free, confidential discussion on how to manage workplace conflict.
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