Q. How should you assess the quality of a prospective external workplace investigator?
A. The answer is "𝗰𝗮𝗿𝗲𝗳𝘂𝗹𝗹𝘆"!
But how?
This list is not exhaustive, but it's a good start:
1. Be aware of an investigator that is available to start today.
Like all professions, great workplace investigators are always in high demand and are often turning down more work than they accept.
Having said that, you might have got lucky and contacted the investigator as they finished up another investigation or returned from holidays etc, so certainly don’t use this as the only consideration. But still…
2. Ask them about their experience.
The investigator should have demonstrable experience in undertaking complex investigations.
If they can offer referees to speak to, all the better.
3. Ask them if they will provide a draft report.
Unless there is some statutory requirement to do so, a truly independent investigator should politely but firmly refuse.
Draft reports beg an argument about independence and client interference in the investigation process and outcomes, even if the draft is requested for benign reasons.
4. Ask them how they approach the investigation of unwitnessed events.
This is CRITICAL.
They should be able to explain how they get beyond "he-said, she-said".
As an employment lawyer, I review lots of investigation reports for employer and employee clients and this is a key differentiator between poor to ordinary investigators and great investigators.
If their answer is “well, if an allegation is unwitnessed, it cannot be substantiated” - run away!
This is principally about the sophistication of the investigator’s interview and analysis skills and their ability to undertake credibility assessments that allow for sensible and safe decision making.
5. Don't assume that if an investigator is a lawyer or an ex-police detective that they are a good workplace investigator - and that's coming from a lawyer!
Some lawyers, particularly litigation lawyers cannot cast aside their adversarial mindset and adopt the independent, impartial fact-finding mindset that is required of a workplace investigator.
Similarly, some ex-police officers cannot cast aside their prosecutorial mindset.
Of course, there are still many fine workplace investigators that come from both these backgrounds, but it is an issue that I still commonly see.
6. Be aware of law firms that offer to be your organisation's legal advisor and conduct the workplace investigation.
There is an inherent conflict between being an organisation's legal advisor and also trying to conduct what is meant to be an independent, impartial workplace investigation, even if different lawyers in the same firm undertake the legal and investigation tasks.
Any other considerations (comment below)?
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