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Investigating allegations against senior leaders

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Assessing Credibility
25 Apr at
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It is not out of the ordinary for our firm to conduct workplace investigations involving very senior leaders – presidents, CEOs, senior vice-presidents, partners (in the case of law and accounting firms, for example), school principals, and even board members. While complaints against these individuals may not be the norm, they certainly do exist.

At its core, a workplace investigation into the conduct of a senior leader is the same as all others – each party to the investigation must be treated fairly, the investigation must be timely and confidential, the collection of evidence must be thorough, and findings of fact must be made on a balance of probabilities, which is the standard of proof used in workplace investigations. Practically, though, investigations involving senior leaders can have a different feel than investigations involving other types of employees, and can have some special considerations, which I have outlined in this blog.

First, selecting an investigator is one of the most challenging aspects of dealing with complaints against senior leaders. My experience from working in-house tells me that it can be very difficult to find someone suitable within the organization to investigate. The staff that normally conducts investigations internally typically hold positions with much less seniority than the senior leader whose conduct is being investigated. In fact, the investigative staff may even fall within the respondent’s reporting line. This may result in an actual or perceived conflict of interest (i.e., the need for the investigator to maintain their own job security versus their obligation to conduct an impartial investigation).

What needs to be avoided, in short, is the appearance that the investigator cannot be impartial due to the power imbalance. We know from our experience that this at times results in organizations retaining an external investigator to investigate. If an organization decides they need an external investigator, care should be taken to retain an investigator who is sufficiently experienced to withstand the rigours of an investigation involving a senior leader and who has capacity to complete the investigation quickly (more on this below).

Second, it may be more difficult to collect evidence when a senior leader is a respondent to an investigation. Witnesses may be very reluctant to participate in such an investigation. Some witnesses may in fact refuse to participate entirely. If they do participate, there may be a tendency for witnesses to downplay any negative behaviour by the respondent. This may not always be the case, but investigators need to be alert to the possibility that the position of the respondent within the organization can impact the reliability of the witness evidence. For example, a witness may be overly complimentary of the respondent, and very critical of the complainant. While this does not automatically mean that the witness evidence is not reliable, the investigator needs to consider whether the witness is trying to side with the respondent to preserve their own standing in the organization.

It is not only the witnesses who may be reluctant to participate. The person who is the target of the alleged behaviour (the “affected person”) may also be very reluctant to provide evidence, given the power imbalance that exists between them and the respondent. This is especially the case when the investigation has been initiated by the organization, rather than because of a complaint being made by the affected person (for example, in the case where a third party came forward with information that resulted in the investigation).

Third, there is a lot on the line when investigations involve senior leaders. I recognize that there is typically a lot on the line for any party to an investigation and that the impact on everyone can be significant – I am not diminishing the experience of those involved in workplace investigations that do not involve senior leaders. However, when a senior leader is involved, it can create uncertainty about their ability to continue to lead the organization. There are also significant reputational concerns, both to the parties and the organization. The result of this is that these investigations tend to need to happen very quickly and confidentially, which means, in my experience, that there is likely to be a fair amount of pressure on the investigator to bring the investigation to a close quickly.

For that reason, there needs to be good communication between the person who is responsible for overseeing the investigation on behalf of the organization, and the investigator. While an organization may have an expectation that the investigation will come to an end quickly, certain steps need to be followed to ensure a fair and thorough investigation. Also, there are often factors outside of the investigator’s control that can lengthen the investigation (for example, the availability of the parties and witnesses is often an issue). In turn, the investigator must ensure that they keep the organization apprised of what needs to be done in the investigation and of any delays.

In conclusion, investigations involving senior leaders may be daunting for everyone involved. It helps to remember, though, that procedurally, they should be conducted the same as any other investigation.

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