HR Investigations: A Step by Step Guide

HR Investigations

A step by step guide

Mark James

Copyright

Copyright © 2024 Mark James. No part of this book is to be reproduced without the author’s written permission subject to any fair use exceptions for non-commercial reasons permitted by copyright law.

Disclaimer

The information in this book is based on the author’s own personal knowledge and experience of HR investigations. These methods are for information purposes only, and should not be regarded as a definitive one size fits all set of instructions or guidance as these methods are not country specific. No representations or warranties, express or implied, are given about the completeness, accuracy, or reliability of the information contained in this book. The information is to be used at your own risk.

This book is also sold on the understanding that the author is not rendering any legal, HR or professional advice or service. In situations where legal advice or specialised expertise is necessary, the services of a qualified professional should be sought to ensure a comprehensive understanding of your obligations and risks. The guidance in this book is not intended to substitute any investigation process, policy, steps or local laws that investigators are mandated to follow in their organisation. The author disclaims and excludes any and all liability in the event that the information or opinions in this book are found to be inaccurate, incomplete or unreliable.

CONTENTS

Introduction

Assessing the Complaint

Deciding who should investigate

Temporary measures pending an investigation

Planning and preparing for the investigation

Notifying key stakeholders and the involved parties

Introduction to investigation interviews

Documents and other sources of evidence

Interviewing the Reporter

Interviewing Witnesses

Interviewing the Subject

Post interview considerations

Analysing the evidence and making findings

Applying substantiated facts to policies

Making recommendations

Writing the Investigation Report

Considerations after the Investigation Report

Conclusion

APPENDIX

Introduction

More and more often, HR professionals are expected to conduct investigations into suspected misconduct. Organisations heavily promote the importance of employees speaking up and raising concerns and therefore need to be on the front foot to respond appropriately to complaints. When employers don’t respond appropriately, it can impact the culture and reputation of the organisation.

Complaints regarding bullying, harassment and discrimination normally fall to HR or employee relations (ER) to investigate. The process of conducting an investigation, however, is not something that is normally taught when you are starting your career in HR. Even for seasoned HR professionals, investigations are not easy, and a lot can go wrong and often does.

This book provides guidance for anyone in HR who has responsibility for conducting a fact-finding investigation into suspected misconduct. These investigation steps have been developed based on best practice techniques from the author’s experience conducting HR investigations across the private and public sectors in EMEA, APAC, and the US & Canada.

In this book, we will explore the steps of:

Receiving and triaging a concern to decide if it needs to be investigated.

Assessing who is best placed to conduct the investigation.

Exploring temporary measures to take pending and during an investigation, such as suspension.

Planning the investigation and notifying key stakeholders.

Preparing and conducting investigation interviews, with specific guidance on conducting interviews with Reporters, Witnesses and Subjects, as well as dealing with anonymous Reporters.

Collating documents and other sources of evidence.

Analysing evidence and making findings of fact with guidance on how to weigh up your evidence, reconcile conflicting accounts, and avoid unconscious biases.

Applying substantiated facts to policies to decide if there has been a policy violation.

Writing up your findings into a report using a simple and impactful structure.

Aligning your recommendations with key stakeholders and closing out the investigation with your involved parties.

These steps have all been brought to life with hypothetical case examples and template wording which will guide the reader through the end-to-end process of conducting an HR investigation.

Chapter 1

Assessing the Complaint

In this book, we will cover the steps you will go through when investigating a complaint against another person. Before we begin, it is worthwhile clarifying a few definitions:

A concern or complaint – is one or more allegations of wrongdoing or unfairness. Concerns do not always have to implicate another person. For example, a person at work may have concerns regarding a particular work entitlement. Concerns can be raised formally or informally.

The Reporter - this is the person who raised the concern. Reporters can raise concerns on behalf of others. For the purpose of this book, the Reporter is treated as the person who has been impacted by the Subject's alleged conduct. Some organisations may also refer to a Reporter impacted by the conduct as the Victim.

The Subject - this is the person who is subject to the Reporter's concern.

A Witness - this is someone who may have relevant information relating to the concern. A witness can be nominated by both the Reporter and the Subject. The investigator may also identify a witness to interview without being nominated by anyone.

When you receive a complaint, it can come in various forms. It could have been sent by a named employee, or someone anonymous. It may have been sent directly to a C-suite executive who has then forwarded it to HR. Some organisations have public-facing complaint ethic portals where anyone can submit a complaint, including members of the public. You may not even receive a physical complaint but are notified by a manager that another employee has witnessed something inappropriate that violates your policies. When you are put on reasonable notice of a complaint or concern, you need to decide whether to conduct an investigation.

Factors to consider (in no particular order) when deciding to conduct an investigation are as follows.

Do you actually have a complaint?

One of the first things to check is whether the Reporter is making a complaint. Employees may have to follow a particular process to register a complaint with their organisation. If that is the case, it should normally be self-evident whether a complaint has been made because in most cases the employee will be required to submit a written concern. If the Reporter is an employee and they have not followed the internal steps at your organisation to make a formal complaint, refer them back to the particular policy on raising concerns and invite them to follow the process in that policy. Emphasise you are not disregarding their concerns, but they need to be formalised appropriately before the organisation can act on them.

If your organisation has a 2-step process whereby a Reporter is encouraged to attempt informal resolution first, and the Reporter has skipped this step, check if the complaint can be pushed back to the informal resolution step, or whether the allegations are serious enough to go straight to a formal investigation. If the allegations are serious enough to be investigated and the Reporter is required to submit a formal concern as part of the internal process, ask the Reporter to formalise the concern in writing if this has not yet been done.

If it is not clear who the complaint is from, and you are not able to communicate with the Reporter (we will discuss anonymous Reporters who you can communicate with later), you will need to check whether the complaint is alleging specific enough facts of wrongdoing for you to investigate, and for the Subject to respond to, which brings us to the next factor.

Does your organisation’s policies require you to investigate the particular issue(s) being alleged?

Let’s now assume a formal complaint has been correctly submitted in accordance with your organisation’s internal concerns policy, and you want to assess whether the issues are suitable for an investigation.

Start by identifying the issues that are being alleged. Some organisations have policies which list the issue types that should be investigated, such as bullying, sexual harassment, discrimination, theft, physical violence, and misuse of drugs or alcohol. Check whether your organisation specifies the issue types that should be investigated, and if so do the allegations in the complaint correspond with an issue type that should be investigated? Any type of complaint that alleges the Reporter has suffered harm or a detriment due to a protected characteristic such as their sex, race, religion, age, maternity leave, etc., will normally need to be investigated as potential harassment or discrimination.

If your organisation does not specify what issue types should be investigated, consider whether the allegations in the complaint could, if proven, breach one or more of your organisation’s policies to amount to misconduct or gross misconduct. If they would then there are grounds to conduct an investigation.

If the allegations would not be capable of amounting to a policy violation to amount to misconduct, consider whether there are other ways (outside of an investigation) to address those concerns. For example, an allegation that the Subject "wore ripped trousers to work" is unlikely to breach a company policy, unless it inappropriately exposes a part of the Subject’s body. You could instead address that concern by having a quiet word with the Subject about maintaining a professional appearance at work. If the concern relates to a relationship breakdown, and the Reporter is not alleging bullying, harassment, or discrimination then check if there are other avenues to address the concern such as mediation. If you consider alternatives to an investigation for less serious complaints, check there is no internal requirement at your organisation to investigate all formal complaints, regardless of severity or the issue type.

Does the concern relate to conduct that took place outside of work?

If a concern relates to conduct that took place outside of work, check whether the concern has a sufficient connection to the Subject’s employment to investigate. When making this assessment, consider whether the alleged outside-of-work conduct: (a) impacts someone who works for your organisation; and/or (b) has the potential to impact your organisation’s reputation in some way. Let’s consider three examples of outside-of-work conduct:

The Reporter and Subject work together Monday to Friday from 9am to 5pm. The Reporter alleges the Subject sent her inappropriate messages late at night on Saturday to her personal phone when she was at home. That is conduct that should be investigated because it could still create a hostile environment for the Reporter at work as they are both colleagues. Outside conduct like this can have a ripple effect or permeate into the workplace. After all, someone who has been harassed by a colleague at home does not un-see or un-hear that conduct when they clock into work.

You receive a complaint about an employee using her personal LinkedIn account to make disparaging comments about a product which your organisation manufactures. The Subject lists your organisation as her employer on LinkedIn. This is conduct that should be investigated as the Subject’s conduct could negatively impact the organisation’s reputation.

You receive an anonymous complaint that an employee has a drink-driving conviction. This should be investigated if there is a requirement for the Subject employee to disclose a criminal conviction and/or have a clean driving licence to perform their role.

Does the concern relate to underperformance?

Occasionally an allegation may be made in a complaint about another employee’s performance, such as "John takes more than a week to respond to my emails". If the Reporter alleges John takes that long to respond to emails because he is slow, rather than doing it deliberately, then consider alternatives to an investigation such as informal guidance or performance management.

What if the Subject has left the organisation?

If allegations are made against a Subject who is an ex-employee of the organisation, who is not performing work for your organisation in any other capacity, then in most instances it is not going to be worthwhile investigating their conduct. This is because you cannot compel an ex-employee to attend an interview to respond to allegations, and you cannot take disciplinary action against an ex-employee. There may be limited circumstances, however, where it could be worthwhile conducting some form of investigation into an ex-employee’s conduct, even though you are not able to interview the ex-employee. This could include:

Allegations against an ex-employee that could pose an ongoing risk