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2/1/2023 12:00:00 AM

5 Common Pitfalls of Workplace Investigations ... And How to Survive Them

The Labour Relations Agency Code of Practice will always be the first port of call for workplace investigators, but it doesn't cover many of the messy real-life scenarios that frequently occur when an investigation is underway.

"The Code is useful when you're looking to understand guidelines on the laws and procedures around workplace investigations", explains Joanne Kane, co-founder and Director of HeadsTogether, "but there’s no handbook for what to do if someone becomes aggressive in a meeting, starts demanding to have additional representation in the room, or slaps a tape recorder on the desk".

Here we look at 5 of the most common challenges facing investigators, and some of Joanne's insights on how best to approach them.

Scenario #1: An individual gets aggressive in an investigation meeting.

Meetings of this nature can inevitably feel pressurised and trigger mixed emotions. “Tears are probably easier in many ways,” says Joanne. “There isn’t an awful lot you can do other than checking the person is okay to go ahead with the meeting and offering breaks, anger is more of a challenge.”

But if someone becomes aggressive, the important thing is to call it out early and choose your words wisely. “If you turn around and say, ‘you are being aggressive’ you’re more likely to get into a ‘no I’m not’/ ‘yes you are’ exchange,” explains Joanne. “Instead, say something like: ‘My perception is that you are now becoming very aggressive, and I need to tell you this needs to be dialled down otherwise we are going to have to halt the meeting.” Do acknowledge that it might be a difficult situation for the person and offer a five minute break, but take control quickly or you won’t get what you need from the meeting.

Scenario #2: There’s an issue over who is to be in the room as accompaniment.

There’s a legal entitlement in certain scenarios to have a Trade Union representative or current work colleague present, but increasingly employees are asking for additional Trade Union representation, a specific representative, or even a family member to be allowed into meetings.

“You have to check out the circumstances,” advises Joanne. “From an HR perspective you need to consider if there is a disability there and, if there is, then you’re required to make a reasonable adjustment.” If a Trade Union representative has dyslexia for example, another rep might need to be present for note-taking, or if someone is saying their anxiety would be eased with having a partner present, and there’s a verified mental health condition, then an adjustment should be considered. But beware of setting a precedent for additional personnel present, particularly with family members. “In our experience, nine times out of ten having family in the room is extremely unhelpful,” warns Joanne. “You now have a second emotional person in the room who is more likely to deviate from the direction the investigation needs to take.”

Scenario #3: Someone is using the availability of their chosen representative to delay the meeting.

Unfortunately, the right to representation can be vulnerable to being weaponised as a tactic to delay or frustrate an investigation. “Ultimately it’s about reasonableness,” says Joanne. “It’s up to the investigator to make a judgement and balance the difficulties of accessing someone with limited availability with what that person will bring to the process and keeping the process moving on."

“Acting reasonably is not about bending over backwards to what everyone wants,” she adds. “It’s about personal judgement and being able to document the thought processes that brought you to a reasonable conclusion.”

"Additional information can be useful to the assessment of the case overall, but if it wasn’t discussed during the meeting, then this needs to be made clear".

Scenario #4: After the meeting, an individual is keen to add to or to change information gathered in the meeting.

There are occasions when the person being interviewed goes away and thinks of additional information that they didn’t say during the meeting, and they want this included in the notes.  This information can be useful to the assessment of the case overall, but if it wasn’t discussed during the meeting, then this needs to be made clear.

"If this happens, we generally allow the additional information to be inserted into the notes, but we put in a heading at the start to signify that this wasn’t said during the meeting", says Joanne, "and we highlight the new information to separate it from the flow of the main dialogue".

If someone is challenging the official notes of the meeting, then it depends on the extent to which they differ. “If they want to make small changes that don’t fundamentally change the content, we would generally allow that,” explains Joanne. “But if someone is saying ‘I didn’t say that’ then you have to agree to disagree and record the fact that it has not been possible to agree the notes.”

"It’s important to make it clear in advance of the meeting what the expectations are around confidentiality".

Scenario #5: You suspect someone is recording the meeting.

Whilst digital recording may be used more frequently by workplace investigators in other jurisdictions, it isn’t common practice here and recording devices are not permitted in meetings of this nature, particularly if done covertly. “What we would say is ‘we confirm we are not digitally recording the meeting, can you confirm you are not recording it on any device either,” advises Joanne. “Have the conversation.”

It’s particularly important to flag this up in virtual meetings. “Ask the individual if they are somewhere private and confidential,” says Joanne. “Ask them to confirm they are on their own and ask them to confirm they are not recording the meeting.” And it’s important to make it clear in advance of the meeting what the expectations are around confidentiality – it’s easier to stipulate in advance that no one else be present at the meeting, than have to ask someone to leave once everyone has logged on.

"As an investigator you’re there to make the process happen in a timely and reasonable fashion".

Final thought

It’s very easy to want to stop a meeting if someone is emotional, or to let a lack of availability delay the process several times over, but as an investigator you’re there to make the process happen in a timely and reasonable fashion. “It’s not about trying to do something absolutely perfectly,” explains Joanne. “You’re there to make the process happen in a reasonable way and you have to take that control and be able to deliver a report that can be considered reasonable, with decisions backed up by clear thought processes and rationale”.

Read more articles in News and Insights


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