Investigation Triage

Investigation triage is perhaps the most important investigative step in the planning and organization stage of the process. Failure to take the necessary time to consider the pros and cons of the different investigative approaches can undermine the very purpose and effectiveness of performing the investigation in the first place.

Once your team has decided an investigation is necessary, you need to slow the process down enough to consider several overarching triage questions:

1. Early legal & policy considerations

• Have you thought about which legislation might apply to the investigation (if any) and do you understand how to ensure compliance?
• Are there any immediate legal or policy-related steps to be taken to protect employees or preserve records and documents?
• Is a temporary employee suspension — or even a termination — necessary? There are legal parameters for employee suspensions that need to be considered beforehand.
• Should there be police involvement?
• Are you required to notify a professional body or other regulator?
• Are you required to notify an insurer?
• Are there confidentiality considerations, particularly relating to sensitive mental or physical health information that must be navigated?

This is not an exhaustive list. There may be other legal or policy-related questions depending on the unique facts

2. Internal versus external investigation

This is a difficult but critical decision for any organization. Many workplace disputes — particularly more minor policy breaches or misconduct — can be sufficiently investigated internally by HR or the person tasked with HR-related matters. However, investigations into more severe policy breaches or misconduct may be better handled by an external workplace investigation firm. There are several reasons for this:

• Complexity: The more serious the allegations, the higher the level of complexity to properly investigate the matter. There can be multiple complainants, thousands of documents, and subject-matter experts required, making it simply outside the scope of competence for an organization, or overly burdensome on human capital or other resources to make it worthwhile;
• Nature of the allegations: Some allegations are highly sensitive or politicized, contain a criminal element, or are related to mental health. These types of complaints can range from sexual assault and harassment to pervasive workplace bullying and toxic work environments. There is no shortage of high-profile cases centering on these types of complaints. In these cases, it is almost always prudent to retain an independent, external workplace investigation firm. With serious complaints, the stakes are much higher for organizations, given the scrutiny they are under from their own employees, corporate partners, financial institutions, the media and public at large. It is incumbent upon management and HR to ensure that the investigative process is perceived to be fair, unbiased, thorough, and otherwise conducted with integrity.
• Level and/or position of the employee(s) involved: The higher the position of the employee who is the subject of the investigation, the more appropriate it becomes for the organization to turn to an external workplace investigation firm. This may come as no surprise to anyone; however, this is not an easy situation to confront if you are the HR professional caught in the middle. You may find yourself under subtle or not-so-subtle pressure, to do everything but properly investigate the complaint by retaining an independent, impartial investigator. By involving legal counsel in the discussion, you can offload some of this pressure, and work to persuade management to do the right thing for the organization.

• Statutory or legal requirements: In some situations, there are statutory or other legal requirements that an investigation be conducted externally, such as those concerning human rights legislation and health and safety. These requirements may vary across Canada, and this is another reason to consult with a workplace investigation lawyer prior to organizing the investigation.

3. Key Personnel

A second key consideration in the investigative triage stage, is selecting the right internal personnel to either conduct the investigation or, if an external workplace investigator is involved, to be the go-to representative at the organization tasked with liaising between the investigator, employees, and management, assist with document production and gathering, scheduling and logistics, and otherwise ensuring that the investigation is smooth, efficient, and undisruptive.

Selection of these individuals is an important step, and the decision ought to be based on the following considerations:

• Perceived impartiality: Anyone selected for this purpose should not be directly or indirectly involved as a complainant or a respondent respecting the matter. Further, if possible, he or she should not have any perceived interest in the outcome of the investigation. For example, by way of a friendship with one or both of the parties, or, conversely, by having a history of disagreement or conflict with either party.
• Competence: A proper workplace investigation requires individuals with various competencies, such as an understanding of workplace policy, directives, legislation, procedures, processes, and operations generally. The individual(s) should also understand the organization’s people, workplace culture, and how it functions to meet the organization’s broader mandate; and, lastly, the individuals should have the necessary training and skills to conduct an internal investigation or to assist an external investigator. These skills include document control and organizational skills, interviewing skills, interpersonal skills, strong analytical ability, and excellent communication skills. In some cases, one individual may possess all of these competencies. In most instances, however, you may need to assemble a team of employees to bring all of these competencies to bear. It is always recommended that HR or management consults with legal counsel — particularly legal counsel with experience in workplace investigation law and practice —before you take any steps in organizing the investigation.

4. Selecting an External Workplace Investigation Firm

• Privilege: Where possible, it is recommended that you retain a lawyer or law firm for any sensitive complaints where you may not want the report or findings to become public knowledge (depending on the outcome). Solicitor-client privilege provides additional protection from outside scrutiny.
• Competence: Even when selecting a law firm to conduct the investigation, it shouldn’t be just any lawyer. There are lawyers and law firms who specialize in workplace investigations and related matters. This goes back to the same competencies you should expect from internal investigators, or those individuals involved in any investigation. Your external investigator should have all these competencies plus additional training and experience in investigations, law, and policy. 
• Impartiality: This is very important in selecting an external investigation firm. Do not select a lawyer or law firm who may be perceived as having a stake in the outcome of the investigation. Law firms that are known to be business-friendly or have a history of acting for the company or organization in other legal matters, should be excluded. The most powerful and persuasive investigation is always the one conducted by a stand-alone law firm without any direct ties to the organization. Failing this, the organization is left vulnerable to an attack on the impartiality or objectivity of the investigative findings, making it a waste of time and potentially more damaging for everyone involved.

Workplace Investigation triage is arguably the most important step your organization can take in the process. Before you embark on an investigation, take sufficient time to consider:

1. Whether the investigation ought to be internal or externally conducted
2. Who in your organization is best suited to be involved in the investigation
3. If you choose to look to an external investigation firm, select one that will withstand the anticipated scrutiny from your various stakeholders.