Badly drafted allegations run the risk of a procedurally unfair investigation. Allegations must describe the conduct alleged and not do so using broad, vague or emotive language. If allegations are not clear and precise a respondent will simply be unable to fairly respond to what the complaint or concern is. It is not possible to respond to an allegation which does not state with clarity what the alleged conduct is, where and when it occurred and who it involved. Without well drafted allegations the investigator will find it difficult to make findings of fact as it is not possible to make findings of fact on the impact of the respondent’s behaviour on the complaint or to make findings of fact in relation to statements of emotion. Allegations must describe the conduct alleged and not do so using broad, vague or emotive language. Nor should evidence in support of an allegation be included in the allegation itself.
Common allegation flaws:
- Vague allegations
Allegations that are drafted in vague terms, that do not give the particulars of the alleged conduct, make it impossible for the respondent to respond to them. Words such as “never”, “always”. “constantly” are not specific and are exaggerated. For a respondent to be able to respond to the alleged conduct detail is required. An allegation should contain detail in relation to specific occasions and dates that the alleged conduct occurred. If specific dates are not known then say how frequently something is alleged to occur, for example, it occurs on a monthly or weekly basis.
Stating that conduct is “horrible” or “isolating” does not describe the conduct. The allegation must contain detail and description of the conduct that is “horrible” or “isolating”.
- Emotive allegations
Written complaint letters will invariably contain how the alleged conduct of the respondent has impacted the complainant; however, this is not relevant to the allegation. The focus of an investigation is on gathering evidence in relation to the alleged conduct and not on the way it made the complainant feel. It is not possible to make finding of fact in relation to subjective feelings, so when drafting allegations ensure the emotion is kept out.
- Allegations containing subjective conclusions and allegations based on rumour
Complainants will often include their own opinion and conclusions as to why the respondent has behaved in a particular way, for example taking the view that it is to remove them from the organisation. The investigator cannot make findings of fact in relation to conclusions and opinions and therefore they should not be included in allegations.
Allegations based on rumour or suspicion are procedurally unfair as it is not possible to expect a respondent to respond to suspicion or rumour as there is no specific detail or information given.
- Stale allegations
Complainants frequently include complaints that relate to conduct that goes back many years. Including these allegations may be difficult to investigate and procedurally unfair as witnesses may have forgotten events and evidence gathered may not be reliable due to the passage of time.
In order to ensure there are no flaws in your allegations it is imperative to ask the complainant for “who, what, when and why” particulars before drafting allegations.
Allegations must be clear and contain sufficient particulars for the respondent to understand what they are alleged to have done so that they may respond to it, thereby providing procedural fairness, without which an investigator cannot make defensible findings of fact.
PRO TIP: Allegations should be drafted in clear and precise language and need to cover: Who, When, Where, What and How.
Worklogic’s renowned training courses offers a diversity of content and program length that provide a wealth of practical content and skill-building. If you’d like to learn more about allegation do’s or don’ts, our popular course, Masterclass: Drafting Allegations is presented twice yearly in our public training program and in-house, for 6 or more participants. Get in touch to find out more.
