Have you recently been confronted with a report of a staff member misbehaving? What did you do about it?

Hopefully, your first inclination was to investigate that allegation fully and fairly.

But deciding that an investigation should be carried out is only the first step.

The next question is: who should be the investigator?

Should it be you, or someone else within your organisation? Or should you find someone outside your business altogether?

RISK OF BIAS

The risk of bias is a key factor you should bear in mind when deciding whom to appoint as investigator.

After all, an investigation is only fair when the person carrying it out has not already made up their mind about whether the employee committed misconduct before they look into the matter.

Someone who is removed from the events is less likely to be emotionally involved or carry any bias against the employee from the outset. That in turn should mean there is less risk the investigation process will be deemed unfair.

WHO SHOULD YOU CHOOSE?

But does that mean you should always find someone from outside your organisation to carry out the investigation to avoid any risk of bias?

Not necessarily. The Employment Court has emphasised that you do not have to be as independent or impartial as the judge in a court of law must be.

In addition, the test for whether an investigation is unfair or not takes into account your business’s resources. It isn’t always going to be workable for you to appoint someone from outside your business to investigate that matter. To do that may take time and money that you don’t have.
With those factors in mind, let’s consider your options.

Do it yourself

The obvious option is that if you are the owner of the business, or the manager responsible for the employee at the centre of the allegations, you could undertake the investigation yourself.

But if you are the subject of the alleged misbehaviour (for example, the employee was reported to have been telling rude jokes about you behind your back), it may be difficult for you to be objective. That’s just human nature.

And even if you can be objective, the appearance of potential bias may be difficult to shake.

Bias does not necessarily follow from mere appearances though. The real test is whether you carried out a fair process and took steps to ensure that your bias did not affect the outcome.

Nevertheless, if there is an appearance of bias you may face challenges to the fairness of your approach down the track.

In those cases, you may want to find someone else to carry out the investigation to avoid that risk.

Someone else within the organisation

There may be another person in your organisation with sufficient authority and distance from the events to be an appropriate investigator.

Even so, the very fact that they are connected to the business may lead the employee under investigation to accuse them of not being objective enough.

Again, the test is whether they can demonstrate they have followed a fair process and acted impartially when undertaking the investigation.

Evidence of an impartial investigation may include where the investigator:

• chooses to disregard any version of events given by an employee or business owner who was clearly biased, and instead chooses to rely on just the remaining available evidence to form their views on what happened;
• concludes that one or more of the allegations cannot be proven on the evidence available;
• gives the employee under investigation a real opportunity to participate in every stage of the disciplinary process;
• considers the seriousness of each of the allegations that are found to have merit, and debates whether they justify disciplinary action; and
• adjusts their decision on the findings of the investigation in response to the employee’s representations.

Someone outside the organisation

In some cases, you may prefer to ask someone outside your business to carry out the investigation. In cases concerning bullying, harassment or fraud, this is often the approach taken where resources allow.

HR practitioners, lawyers and other professionals familiar with taking an investigatory role can undertake the investigation on your behalf. Usually they limit their role to findings of fact – leaving you with the decision what disciplinary action, if any, should follow based on their findings.

The merit of this approach is that the person investigating the issues should be bias-free. The parties involved may be more willing to trust the investigator and feel as though their points of view are being taken into account.

Yet, because there is an additional cost to engaging someone from outside your organisation, you may elect to only go external in cases where:

• the nature of the misconduct has caused a greater degree of tension between the parties; or
• the seriousness of the alleged misbehaviour may call for a greater degree of impartiality.

CONCLUSION

The right person to investigate a matter will depend on the circumstances. Sometimes, to avoid even the appearance of potential bias, you will want to get someone external to your organisation to carry out that investigation.

On the other hand, the law takes into account the resources at your disposal. It is not inherently unlawful to investigate a matter yourself, even if you are closely connected to the events.

The key factor in every case is that you have to be able to demonstrate you have carried out the investigation in a fair way, without prejudging whether the employee has in fact done wrong.