INVESTIGATION INSIGHTS

One of the many highlights from our recent HR Matters Live event was the interview that we conducted with Mick Confrey, Managing Director of Intersol Global, the workplace investigations experts.
 
Mick was kind enough to share with us his Top 10 Tips for a successful investigation. We found this so useful that we have decided to share it with our HR Matters readership.

1. Set clear terms of reference linked to policies and procedures.
   We think that this is a really important step that is often missed in investigations, especially when working with an external investigator. It’s important that the investigator is given the remit of the investigation up front by the person commissioning the investigation and that any policies or procedures which are relevant to the subject matter of the investigation are clearly identified and shared with the investigator. We liked Mick’s suggestion that the agreed TOR can help prevent an external investigator ‘running away with’ the investigation and incurring lots of unnecessary expense. There should be a clear instruction that any change to the TOR must be agreed up front before the investigator expands the scope of their investigation.
   

2. Select an investigator based on their training and ability to conduct the type of investigation required.
   This is really important. As Mick’s talk identified, poor investigations can ruin lives and ruin reputations. Just because someone has been appointed as a line manager, it doesn’t mean that they automatically acquire the skills necessary to undertake an investigation. Similarly, lawyers and barristers don’t naturally make good investigators (it actually requires a completely different skillset). So, we should only be appointing investigators who have been trained in the art form of investigating. We also love the fact that Intersol Global have a large, diverse team of investigators with different backgrounds, meaning that it’s easy to match the investigator to the type of investigation required.
   

3. Treat all relevant parties fairly and equally.
   This should be a given, but it’s not always the case. Treat others as you’d like to be treated yourself is a pretty good mantra for the investigator to bear in mind.
   

4. Recognise and avoid bias.
   This is a big one and it’s where many investigations fall down. Perhaps the biggest risk of all in investigations is ‘confirmation bias’. This is where the investigator seeks out, interprets and favours the evidence which confirms their existing beliefs or values. Investigators need to be trained to be alive to this risk and armed with the tools to overcome it.
   

5. Use neutral language.
   Mick recommends that we avoid using language such as “perpetrator” and “victim”. He also explained that adding “alleged” does little to add neutrality to these words. Mick’s suggestion is that we refer to the ‘reporting party’ and the ‘reported party”, which we think is really helpful. Similarly, when reporting the facts, Mick explained that it’s important for investigators to keep emotion out of things and avoid editorial flourishes which might unintentionally influence the reader of the report.
   

6. Manage all relevant parties expectations from the start
   One expectation to be managed is the timescale of the investigation (having regard to any guidelines in the relevant policy). However, Mick also explained that employers should be clear at the outset that the reporting party will not be informed of any action that is taken against the reported party if the allegation in question is upheld.
   

7. Interview all relevant parties and witnesses using correct questioning techniques.
   From an employment law perspective, the investigation doesn’t have to be to a police standard and it is not a case of leaving no stone unturned. However, the investigation does have to be proportionate. As Mick explained, an experienced investigator will be able to guide the employer on which witnesses need to be interviewed and will have an open mind to expanding the list depending on what those witnesses share. Mick is also of the view that questioning techniques need to be taught; open questions are obviously important, but the real skill is in probing, drilling down and clarifying in a way that does not come across as cross-examination.
   

8. Collect all relevant evidence pointing towards AND away from the responding party
   This is important and goes to the neutrality of the investigator. Both sides of the story need to be heard and all witnesses should be given the opportunity to provide evidence which supports their account.
   

9. Reach findings based on the evidence gathered.
   In Mick’s view, this is where an investigator earns their stripes. Ultimately, the purpose of the investigation is to make findings of fact. However, those findings must be supported by the evidence. Where the evidence points both ways, a competent investigator will still make a finding, but will carefully explain their rationale.  There is no value in a report which says, “It was not possible to conclude…”
   

10. Write clear and easy to understand reports.
    The report is the main output of the investigation. It will form a key part of any later trial bundle and so must be drafted with an eye to being scrutinised by lawyers and judiciary alike. Mick’s top tip is that the executive summary is written last to avoid falling into the trap of making the report fit your executive summary (more confirmation bias!).

 
We hope you’ve found these tips as useful as we did. If you’d like to discuss investigations further, feel free to contact Mick or one of his team at: info@intersolglobal.com or www.intersolglobal.com