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Avoid opening Pandora’s box: Working with your external investigator before, during and after the investigation to safeguard neutrality

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We have all heard of the myth of Pandora’s Box – a box containing many evils that once released into the world could not be put back. As a third-party workplace investigator, I often think of clients having a Pandora’s Box full of information that, if released, could be prejudicial and could lead to an eventual claim of bias.

As external investigators, who are not part of the organization, we may require a bit more contextual information as the investigation is starting. Clients might be tempted, however, to provide far more information than is necessary, including opinions about the investigation and the parties. Like the evils that Pandora unleashed, this information cannot be un-heard once it has been shared.

While the exact nature of the information that you share with an external investigator will vary from case to case, below are some general rules about what you can say at each stage of an investigation, to ensure that the investigator stays neutral and unbiased.

Before the investigation:

  • The initial intake call
    • What to do: During your first call with the external investigator, you will likely want to provide them with general information about the parties – including their names and positions within the organization – as well as a general overview of the incident or incidents to be investigated.
    • What not to do: It might be tempting to provide the investigator with your own view on the merits of the complaint, or with your personal opinion of one or both of the parties (“This guy is such a troublemaker!”) Keep in mind that once the investigator has heard something, it cannot be un-heard, and that any information you give them could be seen as colouring their view and could lead to a future allegation of bias.
  • Providing documents
    • What to do: At the beginning of an investigation, send certain documents that could be helpful to the investigator, including a copy of the complaint and your internal policies.
    • What not to do: While you might thinks it’s helpful to send the entire HR file for both parties since “more information is better,” most of the information of in an HR file will not be helpful to an investigator and in fact could be prejudicial. The investigator does not need to know the disciplinary history of either party; they only need to know about the incident under investigation.

During the investigation

  • Requesting updates
    • What to do: Investigations can be stressful for all involved, and it is understandable that you might want to know the status of the investigation at a given point. You can ask the investigator for a general update, such as, “I have finished the interviews with the parties and will be interviewing witnesses.”
    • What not to do: Do not ask the investigator what their findings will be while the investigation is ongoing. While it might be tempting to do so, keep in mind that you do not actually want the investigator to be able to answer this question, as it is a sign that they have made up their mind before they finished gathering all the relevant evidence – a classic indicator of bias.
  • Timing
    • What to do: Related to the above, you can ask the investigator if they have a general sense of how much longer the investigation will take. Know, however, that any answer will be an estimate, and that during any investigation issues can arise that will make the investigation proceed at a slower or faster pace.
    • What not to do: You might want to give an investigator a particular timeframe in which the investigation needs to be completed, especially if you are getting internal pressure from others in your organization to get the investigation wrapped up. The problem, however, is that there could be important evidence that cannot be accessed within that timeframe. Asking the investigator to make a finding on an incident when they know that relevant evidence is outstanding that could be obtained (for example, when a witness returns from vacation in a week) compromises the neutrality of the investigation.

After the investigation

  • Questioning the findings
    • What to do: You may find that when you receive the report you have difficulty following how the investigator reached a particular conclusion. You can ask your investigator how the finding was reached, and they might be able to provide additional context from the evidence in their file.
    • What not to do: Disagreeing with the investigator’s findings is different from not understanding them. If you disagree with the conclusions in the report, it can be tempting to debate with the investigator whether their conclusions are correct. Keep in mind that – in the event of future litigation – it is likely that the final report and any drafts, as well as the investigator’s notes, will be disclosed. Consider how it will look if your “independent” investigator changed their findings at your urging.

In all cases, open communication with your investigator is key. Do not hesitate to raise questions or concerns during an investigation, but if there is any doubt as to whether the information you are sharing with your investigator is appropriate, ask before sharing it. You can always provide additional context if needed, but putting the information back in the proverbial box is a far more complicated – if not impossible – task.

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