This is the final part of our workplace investigation series, where we look at the decision and reporting processes.
An investigator should tell the interviewee that they may be required to participate in a further interview or provide further information at a later date. The interviewee should also be invited to get back in touch to tell the investigator anything extra that the interviewee thinks of at a later stage.
Evaluating the interview
Once an interview has been completed, the investigator needs to evaluate what was said and whether they need to re-interview the person or interview other people. The investigator may have been told about documents that they were not aware of; they should assess whether these would aid the investigation and, if so, what steps should be taken to obtain them. Even if the investigator thinks that the documents might be unnecessary, it would be advisable to look at them to confirm this view.
As a general rule, an investigator should always ask themselves at the end of each interview whether there are any other avenues of inquiry to pursue. The investigator should also revisit their investigation plan and assess whether it needs to be changed and, if necessary, make the changes.
Assessing the evidence
Investigators should take some time to assess all of the evidence and to decide what findings they will be making.
Standard of proof
How conclusive does the evidence need to be before an investigator can make a finding that something occurred; in other words, what is the standard of proof for the investigation? The relevant standard is based on the balance of probabilities to the reasonable satisfaction of the investigator.
Conflicting evidence must be dealt with in order to make a finding. Conflicts in evidence can arise when parties are giving:
accurate evidence, but they saw, heard, etc different things;
evidence which they genuinely believe is true, but it is inaccurate; and
false evidence, i.e. lying.
Sometimes an investigator must take one person’s word over another’s. This issue frequently arises in allegations of sexual harassment when there are no witnesses. The mere fact that a complaint cannot be clearly proved does not necessarily mean that it will not be accepted to have occurred on the balance of probabilities.
Who to believe?
Investigators must assess how the evidence of each person measures up to standards of consistency and probability. The best opportunity to test evidence is during interviews. Investigators need to question interviewees on points of inconsistency and note the demeanour and body language of interviewees when giving ‘suspect’ evidence.
Drawing a conclusion
An investigator’s role is to be objective. An investigator’s conclusions can and must only be based on the available evidence. If the report is reviewed, it will be easy for an aggrieved person to argue that the investigator’s conclusions were not reasonable if they are not based upon on the available evidence.
The investigation report
The following material should appear in an investigation report:
Scope and purpose.
Background, including a summary of the complaint or alleged misconduct.
Executive summary, including brief details of the investigation, its findings and recommendations.
Investigation summary, including the version of the complainant or details of the alleged misconduct, versions of other witnesses interviewed, details of other evidence gathered and the respondent’s version.
Findings, which should be set out in such a way as to provide brief details of the evidence which supports them.
Recommendations – generally, this will be a recommendation that the decision maker consider disciplinary action (if the complaint is substantiated); other recommendations can also be included for remedial action (e.g. changes to procedures, training etc).
Please seek advice if you require assistance with an investigation report.
That’s a wrap! We hope our workplace investigation series has been informative and helpful and that all eight parts, combined, will be a useful guide. If ever in doubt, seek advice.