Looking into workplace investigations, Part 14 – closing submissions
Since most workplace investigations involve something contested, most investigation reports will disappoint one party or the other. Indeed, since very few workplace disputes are exclusively the responsibility of one party alone, it is entirely possible if you put your mind to it that at one level or another your report will be a disappointment to everyone involved. [That is no bad thing. A report which sides wholly with one party or the other is far less credible than the one which finds a degree of culpability (not necessarily serious or disciplinary-actionable) all round].
We have considered in this series the various precautions which can be taken as you go along to minimise the scope for effective challenge to your report. However, you cannot ultimately control whether what the employer then does with it will lead to litigation. Given that the legal integrity of your report will be key to the reasonableness of the employer’s reliance on it, there is a high likelihood that if the wider issue goes to the ET, you will be going along for the ride as well.
Unless the complainant can hole your investigation below the waterline, his chances of making much headway are limited, so if you are there at all, expect some fairly aggressive questioning. By the date of the hearing it may be months, maybe a year, since you last saw it so be sure to prepare — go over and over it until you are ready to justify again why you said what you said, doing your best to exclude reliance on any information or facts arising only after it was prepared. Remember the facts, the people, the evidence. Hopefully the report will speak for itself as to the conclusions you reached, but that won’t be so useful if under cross-examination you can’t recall whether it does so or not.
How you respond to that questioning will be key to the perceived impartiality and reasonableness of your report. Keep front and centre in your mind that you were (and are) not on one side or the other. Your only role was forming a view on some facts, and therefore you should have the minimum comment to make, let alone volunteer, on the merits or otherwise of what happened on the back of your report. If you made recommendations for resolution, that is slightly different because then you will be need to be able to justify the prospective merits of the course you proposed, but you still did not actually take the decision. It is the difference between (a) “I found facts which could justify X’s dismissal” (investigation); (b) “I found facts which should justify X’s dismissal” (recommendation); and (c) “I found facts which did justify X’s dismissal” (decision). You need to be very clear which hat you are wearing and avoid the instinctive temptation to slide from being independent investigator to advocate for the employer. As investigator you are not invested in the overall outcome of the claim, only in the defence of the propriety of your own freestanding part of it, your report.
This requires considerable mental discipline, but it would be a tragedy for all the resolutely impartial work you put into the investigation and the studiedly neutral terms of your report to be undone by conceding in evidence, expressly or impliedly, that you were out to nobble the complainant from the start.
That mental discipline is important because being cross-examined in ET, especially by a pro, can be a deeply unpleasant experience. Someone you have never even seen before sets out deliberately to make you look unprofessional, incompetent and dishonest in a public forum. One common means of doing this is to lead you down the path of defending the indefensible and then, having poked a tiny hole in the fabric of your investigation, to let you make it much bigger by seeking to argue that it doesn’t exist at all. If you are drawn in evidence to a slip or error or something which you might have done differently next time, don’t deny it – accept that it wasn’t perfect, knowing full well that perfection is not the test, only whether your report was within the range of reasonable responses.
Similarly, beware the question which your opponent says “must” be answered with a simple yes or no. If questions around the facts could be answered so easily, you probably would not have needed to investigate them in the first place. Fifty Shades of Grey is a very limited palette compared to some workplace enquiries. Therefore, if to do to justice to the question your ideal answer is “Yes, but…” or “No, but…” or “It simply can’t be answered on that basis“, then say so. You may get a lot of theatrical huffing and tutting and flouncing around from the other side, but the ET will hear you loud and clear.
This is the final post in our series on Workplace Investigations. If there is anything else you would like us to cover please do get in touch. If you have found this series interesting and/or useful, please pass it on. On the other hand, if you have simply found it terrifying, then do keep in mind that we offer an investigations team of considerable size and breadth of experience and would be very pleased to act in that capacity in your place.