While you’re here, you may wish to attend one of our upcoming workshops:
Before joining Rubin Thomlinson, we both worked in-house in large organizations, overseeing workplace investigations. Internal investigations can be tricky to navigate; opportunities for conflicts and confidentiality breaches are heightened when investigators work among those who they are investigating. But working internally also provides a unique opportunity to spot trends in the workplace and assess the effectiveness of the organization’s policies and processes.
As the legal requirements for conducting workplace investigations continue to develop, in-house investigation teams are becoming even more integral to the organizations in which they work, not only in terms of conducting investigations, but also by being able to alert the business when problematic trends are identified through their investigative work.
We’ve reflected on our experiences and have set out what we think are important considerations when conducting internal investigations.
Beware of conflicts
To avoid allegations of bias, there should be a good degree of separation between an investigator and those involved in the investigation. For example, an investigator should not be investigating their own team members, or a person to whom they are accountable, as this can affect their neutrality. As a general rule, a person should not investigate someone who has the ability to influence the investigator’s employment within the organization. Those who oversee investigations should make sure to select the investigator carefully and consider the parties involved and the chain of command. Also, if the investigation team typically investigates a certain group of employees, efforts should be made to separate the investigation team from that group (e.g., ensuring that they sit in different locations in the office).
Manage workload issues carefully
It is not unusual for in-house investigators to have duties other than conducting investigations (we know, for example, that this is common for human resources professionals). The concern with this is that, with a significant workload, it may be difficult for investigators to conduct timely workplace investigations. As explained by our colleague Alexandra Oli in her recent blog, internal backlog is not a defensible excuse for delay. This means that investigators need to be highly organized and keep track of their files, to ensure that investigations do not fall through the cracks or are subject to unnecessary delay. Investigators should work closely with their managers about prioritizing work, and think of solutions to drive the timely conclusion of their cases. In assigning investigations, managers should also be mindful of the case load of their investigators to avoid investigation delays.
Keep things confidential
Internal investigators have a challenge that external investigators do not have: navigating amongst their colleagues when conducting investigations. When working in-house, investigators need to be as discrete as possible. They should carefully consider who needs to be notified of the investigation and which witnesses are relevant. A lack of confidentiality can undermine the integrity of the investigation, seriously affect the reputation of those involved within the organization, and deter others from complaining when they have issues to raise. As well, internal investigators need to be mindful of the confidentiality of their electronic and physical files; these should be segregated so that those who are not involved in the files do not have access to these.
Internal investigators also need to find a way to obtain evidence (and guidance, if necessary) from within the organization discretely. With confidentiality in mind, investigators should find trusted sources within the organization to assist with their investigations. There are some functions within the organization that can be good sources of information and understand the need for confidentiality – including departments like internal audit, human resources, and legal services. This ability to work cross-functionally and build relationships with these departments can also help to address complex issues that may arise during an investigation.
As external investigators, we conduct investigations for many different clients, so we are not necessarily able to spot trends within an organization, unless we have been specifically asked to conduct a workplace assessment. Internal investigators who handle many investigations for the organization can gain valuable insights about the issues within the organization. Those who manage investigations should actively monitor these trends and seek the input of their investigators about this; this is a good tool to proactively address issues within the organization. Internal investigators should also come forward when they notice these trends, as the information can be helpful to the organization. It may also be helpful to implement a formal process to keep track of the trends (for example, recording data about each file when doing the file closing).
Managers and investigators can consider where there are any patterns of behaviour (for example, fraud or sexual harassment), or trends in certain departments or regions. Such trends can signal to the organization that more needs to be done to prevent wrongdoing in the workplace, such as training and implementing or updating policies.
Overall, internal investigators have an important role to play in their organization and are well poised to identify issues so that these can be proactively managed by the organization. They must, however, be mindful of the complexities that are inherent in their work as internal investigators.
Our services recognize the human side and the legal side — equipping organizations with the insight they need to become healthier and more resilient.
Learn more about our services here.