As an employer, it is stressful when you receive a complaint from a worker about breach of policy. You will have a number of considerations to weigh when figuring out how to proceed. In addition to deciding whether you need to take immediate steps to separate employees, or make changes in the workplace, one thing to consider is whether to hire an external investigator or handle the complaint internally. There are many situations where employers can and should handle their investigations internally. However, there are other times when it is prudent to seek out an external investigator. Here are a few factors you should consider when deciding who is best to investigate:
1. Who is involved?
It is important to consider who the complainant, respondent and potential witnesses will be and whether anyone within your organization can be unbiased and neutral. For example, if a party is a senior manager or a member of the HR department, it may be difficult for someone in the HR department to conduct a fair investigation and question their colleagues or superiors. Remember, it is key that the parties involved in any investigation feel like the process is neutral and fair to everyone involved.
2. How complicated are the issues?
Some complaints are very straightforward and involve issues that can be easily resolved by reviewing documents or speaking to a few witnesses. Other complaints involve multiple allegations that are nuanced and complicated. Many times, having a trauma-informed investigator who is trained to understand the impact that past trauma has on individuals and how to ask questions in a sensitive way is the only path to success. An inadequate internal investigation can create more problems than it solves.
3. Do you have time?
Conducting a workplace investigation takes time. If you decide to conduct it internally, that is time that is taken away from your important organizational priorities and goals. Having an external investigator take over will allow you to focus on what you need to do in order to keep your organization running.
4. How much will it cost?
Hiring an external investigator is costly, but it can also save resources and money internally by allowing a neural party to efficiently deal with the complaint. A good external investigator should be prepared to provide you with an estimate up front and be flexible in their approach. Every complaint is different and investigators will take those differences into account in determining their process. It is important to ask external investigators if they are comfortable finding other ways to resolve complaints outside of a report, like mediation or discussions. Sometimes, these results are much less costly then running a full investigation and paying for a report that is not helpful.
5. Should the investigation be privileged?
Confidentiality is a big consideration for most organizations in conducting investigations. By hiring an external investigator who is also a lawyer means that the investigation and the report can be covered by solicitor-client privilege and ensure confidentiality.
There are pros and cons to investigating internally vs hiring an external workplace investigator. If you are not sure which approach is right, call or email us and we are happy to discuss both options. To learn more about our approach to investigations, you can check out our investigations practice here, or contact us.
This blog is not intended to serve as legal advice, and only provides general information. Every situation must be considered on its own facts. Need legal advice? Contact us by phone at 604 535-7063 or email [email protected].
