Workplace investigations can be fraught with emotion and need to be handled with the utmost sensitivity and tact. Your obligations as an employer also means that there are certain codes of practice that you must meet. Failure to address and resolve a conflict in the workplace can lead to a difficult, obstructive, and stressful work environment and ultimately may lead to industrial relations problems and litigation.
Our latest survey also shows that less than half of respondents would be comfortable in conducting a workplace investigation. With the complexity of the process and the lack of experienced knowledge in many HR teams, we want to help.
Your Workplace Investigations questions, answered.
What constitutes a workplace investigation?
It is important when confronted with an issue or a complaint that the employer quickly assesses the situation and decides whether a formal investigation is necessary or not. Not every complaint or incident requires a formal investigation. It is, however, important to be aware that there are risks in incorrectly deciding not to investigate a matter.
A formal workplace investigation may be necessary when:
- An employee complains of bullying, harassment or sexual harassment at work and the issue(s) cannot be resolved informally or through mediation.
- You suspect an employee is stealing from the business or is engaged in some form of fraudulent activity in the workplace.
- There are serious issues of misconduct which could lead to the dismissal of one or more employees.
Failure to act promptly or adequately when you receive such a complaint can easily escalate into litigation which will likely be costly and damage the reputation of your business. Acting promptly is strongly advised. Depending on the nature of the complaint, this may mean launching a workplace investigation.
What are some of the key things to look out for when conducting a workplace investigation?
A good starting point when considering conducting a workplace investigation is to outline clearly each of the steps in a traditional investigation. Perhaps you do not have a lot of experience, or it has been a long time since you completed one. Either way, it would be in your best interest to re-familiarise yourself with the process.
One of the very first items on your list should be to review the existing policy in place at your organisation. You are obliged to follow the procedure outlined, as it has already been established and agreed upon. If this policy mentions face to face meetings specifically, you may need to insert an addendum or an amendment to your existing policy in order to take account for conducting meetings remotely.
You should also provide all parties with the terms of reference that clearly outlines exactly what is being investigated and the scope of the investigation, and you will need to outline that the meeting is also expected to be confidential. That means that you need to inform your employee in advance, about how long the meeting is expected to take and that they will need to be in a private space throughout.
Setting a time and date for the interview is next, and all parties should be notified in writing. If this is a remote meeting, you may need to offer your employee more flexibility than usual. It therefore makes sense to ascertain their preferred time of day and week in advance of the meeting being set. Prior communication with them regarding their personal situation will help to make finalising a date much more efficient.
Usually, parties are summoned to a dedicated private space, in the workplace or perhaps in an external venue if enlisting the help of a third-party HR consultant. If you are running a remote investigation, ensure that you have set up a dedicated meeting that is password protected for security. Use an established and well-known provider that complies with privacy regulations. If conducting multiple interviews, you should ensure that you are using unique links for each one, rather than setting up one meeting and just relying on people to only log on at the time requested. Alternatively, most providers will offer a ‘waiting room’, or a ‘knock to enter’ policy, so make sure you adjust this setting to minimise the risk of having any interviewees turning up announced. This link should be sent to attendees via email when arranging the interview, or steps on how to access the meeting should be clearly explained in the notification letter. Remember that if your attendee wishes to include a representative, that representative will also need to be provided the details.
Best practice in HR matters – if viable for your business – is to separate out the process, meaning that the person who conducts the interview should be different to the person who decides the outcome. That means that you should also ensure that your colleagues in the HR department are up to speed with the tools needed to conduct the investigation – and that you provide access to training where necessary.
If remote is preferred, it would be in your best interest to send your employee directions on how they can access the meeting. Although many of us have become acquainted with online video conferencing tools of late, this should not be assumed for everyone, and should not be taken for granted. The last thing that you want is to be fully prepared for a meeting only for it not to go ahead because your employee was unaware that they would need a certain browser to access the link, for example. Sending your employee a brief video explainer will help minimise this possibility. It is also worth reminding them of video calling etiquette, for instance making sure that they are in a well-lit room and that they have informed those they live with that they should not be disturbed.
What about data & confidentiality?
When dealing with sensitive matters such as an internal investigation, the last thing that you need is for security to be compromised. You also need to think about what kind of consents you may need from your interviewee. It is vital that you give careful consideration to the following items:
Data storage
- Are you storing the data relating to the investigation on a workplace network drive accessible via a VPN? Is this drive separate to the company-wide one? Who has access rights, and why?
- Are you storing data locally, in a desktop folder? Have you password protected this folder – and your device?
- Do you have paper files relating to the investigation? If so, where are these currently being stored? If you live with others, how are you ensuring the privacy of these files?
- If you have been taking notes on a notepad, what type of information do these notes contain? Where is this notebook being stored?
- Is the investigation data currently stored in multiple locations? If so, why? Can you consolidate the data?
Third party providers
- What are the different apps/tools you need to use in order to conduct your investigation? (This includes not only your video conferencing tool but also any other tools being used, such as OneDrive or Google Drive for file storage, or DocuSign for data/confidentiality agreements etc.)
- Do they have a robust privacy policy and GDPR statement?
- Where does the provider store any recordings or files, and how long do they store them for?
- Have you thoroughly researched the providers reputation for data security?
- How many people in your company have access to the provider’s account that you will use for the investigation?
- If using a video conferencing tool that allows all parties to record, do you need to implement extra measures to ensure that your interviewee does not record the meeting?
Data Consents
- Has your interviewee consented to the use of a third-party tool for interviewing purposes?
- Does your interview consent form allow for the meeting to be recorded? Additionally, if your software records both video and audio, has your interviewee given their consent to have their image captured, as well as their voice?
- If your interviewee wishes to include a representative, have they also signed a consent form?
- Has your interviewee signed something in which they acknowledge that the investigation should remain confidential? Are they aware of any measures they might face should they breach this?
Can I run a workplace investigation remotely?
Workplace investigations are serious matters which should be dealt with seriously, and of course, promptly. If remote is the best option for you, then yes, do run a workplace investigation remotely. Let’s look at the practicalities.
The interviews should always be conducted in a private, confidential manner. Although we are big advocates of remote working, this is not the time for your partner/housemate/child to come bursting into the room. It is your responsibility to safeguard against this as much as is possible. Explain clearly beforehand the importance of privacy for this meeting. Try hanging a sign on the door to mitigate the risk of anyone walking in unannounced. Another good practice is to sit with the back of the laptop facing the door. That way, even if someone comes through the door you will have a chance to address them before they see your video screen and your interviewee.
On that note, your equipment should be suitable for the interview. If you are not in a space that is guaranteed to be private, headphones should be worn as this minimises the possibility of anyone else but you hearing the statements. Ensure your computer is automatically checking for updates and that these have all been done before the interview. Sign into your chosen software at least ten minutes in advance so that you can rest assured it is working. Internet speeds can be assessed beforehand if you wish – a simple Google search will bring up a free speed checker.
While you need to ensure all your equipment is up to date, you also need to run an assessment on your employees’ technology. What happens if they cannot download the software? What if they do not have a stable internet connection or any at all? What if they do not own a personal computer? If feasible to do so, your organisation may wish to supply needed equipment to your interviewee for them to complete the interview. Even in this day and age though, we can’t expect everyone to have the familiarity with technology that is required for video conferencing. In these cases, how are you facilitating the interview? Will you be able to do it via phone call and record it? Being prepared for every eventuality will help make this process less stressful.
If you need to transfer the video recordings to be transcribed, then ensure you are using a secure file transfer platform. Due to the size of video recordings, you will likely not be able to send via email. Whatever you do, don’t be tempted to upload to your personal Drive and share a link. Re-read the above section on data privacy if still unsure.
What are the benefits or hiring an external provider to conduct a workplace investigation?
Workplace investigations are a sensitive subject that can be a potential minefield for employers. They can be tricky to get right, even in non-pandemic times. However, they must be completed effectively, efficiently, and fairly. Despite your best efforts, you may find it much easier to outsource the investigation to a trusted third party. Be realistic in your abilities, but also your resources. If you are the only HR Manager in your organisation, and you are dealing with a complex matter, then you will need to look externally for support so that you can provide a fair process to all involved.
- Impartiality– outsourcing a workplace investigation ensures that any organisational influences are removed, allowing for a fully independent and impartial investigation. This also ensures that working relationships remain as unhindered as possible, as is always a risk with emotive issues such as those which lead to workplace investigations.
- Expertise – a key aspect of an efficient and high-quality workplace investigation, is the high standard of reporting required. Outsourcing to a third-party provider who has extensive experience in drafting, writing, and completing workplace investigation reports assures you that the final report you receive is completed to the highest standards.
- Time saving – and, as mentioned, do not underestimate the time it takes to conduct a workplace investigation from start to finish. Whether you are a small HR department, or part of a wider team, the time saved by even the support alone, is invaluable.
Where can I go for help?
At Insight HR we have over twenty years of experience running workplace investigations. Our team of experienced investigators, including an ex-Garda, understand the legal complexities involved in carrying out a thorough and objective workplace investigation, and can guide you through this complex process.
To find out more about workplace investigations or to talk to one of our consultants in confidence call us on 056 770 1060 or email info@insighthr.ie.
For further guidance why not register for our next free HR Room Webinar – A Guide To Workplace Investigations, to get live interactive guidance from the experts. Save your spot here.
What’s the cost of getting it wrong? Do I need to involve the Gardaí? How do I write the report?
For further guidance answers to more of your questions, make sure to download our 18-page Workplace Investigations Guide here!
