New Developments in Launching Investigations

Jason Clark
September 2, 2020

This year, Worklogic has been busy updating our highly informative book (also now a textbook) about workplace investigations, with the third edition due to be released later this month. While working through the updates, I got thinking about what sort of changes I have seen occur in the investigations landscape during the last two to three years since the last edition was updated, and how I think workplace investigations might develop into the future.

The changing landscape for workplace misconduct

One of the biggest shifts has been a focus on how organisations approach employee misconduct. The #Metoo movement, the Respect@Work National Inquiry, and the media interest in how organisations attempt to manage (properly or otherwise) poor behaviour are examples of an increased awareness by the public, and in that regard employees, about these matters.

This focus not only provides us insight into how organisations are managing inappropriate behaviour, but also provides us the opportunity to consider ways of developing our own approach. Likewise, the decisions released by the Fair Work Commission provide guidance on what is best practice (or not).

Tangentially, the way we physically conduct investigations, has shifted due to the influence of COVID-19. For example, remote interviewing has become the norm; and while this method of interviewing participants is often criticised, it has become necessary to ensure complaints are still being managed by organisations during these extraordinary times.

3 trends for workplace investigations

These influences have certainly shaped the way investigations are being conducted, but exploring at a deeper level, here are three further features of investigations I expect to see develop over the couple of years.

1. Trauma Informed Practice

Reports of sexual harassment (including workplace related sexual assaults) have increased, particularly in the wake of #Metoo. There are numerous reasons why victims, most of whom are females, of alleged sexual harassment do not come forward: fear and lack of faith in the complaint management process to name a few; however, one that is often not considered is the possibility of re-victimisation caused by an investigation.

A trauma informed practice to investigations minimise the risk of re-victimisation by:

  • Ensuring workplace investigators have had training on the impacts of trauma in a range of scenarios.
  • Provides a safe space (culturally, emotionally, and physically) for the employee to make their complaint.
  • Ensuring additional supervision and support is provided to complainants but also other participants in an investigation to minimise the possibility of vicarious trauma.

These are just three ways or minimising risk but there are others and organisations should consider upskilling their internal investigators in trauma informed practices, or connect with external investigators that have the skills and background, to ensure that serious misconduct investigations are conducted in a way which minimises causing further trauma to complainants.

2. Increase in the use of Digital Evidence

I previously wrote about the use of electronic evidence in workplace investigations in 2018 and at that time I observed a tendency for organisations to avoid thinking about electronic evidence as a legitimate source unless we were investigating corruption or corporate fraud.

There is a wealth of information stored digitally about an employee’s work activities, and if that evidence is likely to be relevant and necessary (being the important tests) and likely to assist the investigator to make a finding, it should be obtained, even if not offered up by a participant.

As workplace investigators, we need to start taking a 360 degree approach to what evidence is available and not just rely on what employees are telling us during interviews, and the odd PDF’d email, as the only source of information to base our decisions on. Being curious about what other evidence might exist to support what we are being told is part of being a thorough investigator.

I am not advocating for hacking and surveillance etc, but what I am suggesting is that now or in the near future, particularly as employees work more remotely and online, digital evidence is going to become more available and having the skills to properly identify, obtain and interpret it will be needed.

3. The Demand for Skilled Workplace Investigators

I don’t think I am talking out of turn when I say a vast majority of HR prefer to avoid conducting workplace investigations. Let’s be honest, most people don’t go into HR to become workplace investigators and my partner (who is in HR) frequently tells me she would prefer to stick to positive HR work only.

When I facilitate our workshop on this topic, the first question I ask participants is “who enjoys conducting investigations?” and at least three quarters of the group won’t put their hand up. When I ask them why, it is usually because they are not comfortable with the process, the emotions involved and the potential risk of not getting it right.

The increased visibility of workplace behaviour and the scrutiny of grievance processes by the Fair Work Commission and other tribunals means that the pressure on HR to conduct an investigation which can withstand scrutiny is only going to increase. This means HR is going to need to be appropriately trained, not only in the investigation process, but also in issues like trauma, complainant assessment, evidence analysis, proper interviewing techniques and robust reporting.

HR already do a great job, but as the complexity of workplace misconduct, especially those that involve a sexual element or require the collection of digital evidence, increase so to will the need for organisations to ensure that their HR team are given the skills and the support to be able to effectively manage these matters when they occur; or know who to call in as expert external investigators when needed.

About Jason Clark

Jason Clark is a Worklogic Director. Jason has extensive experience as a workplace investigator, investigating a range of issues including fraud, bullying, harassment and sexual misconduct. He has also assisted numerous organisations develop strategies to minimise poor behaviour and encourage a positive workplace culture.

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