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Volume XII, Number 27

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Looking Into Workplace Investigations, Part 7 – The Inclusivity Imperative

The increased spotlight upon D&I matters which seems to be replacing covid as our clients’ dish of the day shines upon investigations too.  How you investigate employees’ disclosures or complaints (especially but by no means necessarily, of discrimination or harassment) can make a considerable difference as to how those employees and others sharing their protected characteristics view the integrity and value of that process.  If you do not believe that you will get a fair hearing because of your race or gender, for example, you are less likely to make disclosures or complaints in a good faith attempt to improve the situation.  Instead, you are more likely to sit on stuff which the best interests of the business would suggest should be disclosed, and/or just to leave, denying your employer all your talent, experience and commitment, and in no mood to recommend your employer to others who may share that characteristic.  Maximising the confidence of all your staff in your investigations process, whether they feature in it as complainant or accused or witness, is therefore a key part of your getting the most out of doing it properly.  They must believe that the investigation process you propose is suitable for their complaint or disclosure, that it will be looked at objectively and impartially and that it will lead on to meaningful redress where appropriate.

Here are some considerations to that end:

  1. An inclusive investigations process is not necessarily about obtaining different outcomes.  A finding which is affected by the protected characteristics of the investigator will be as discriminatory as one affected by those of accuser or accused.  The protected characteristics of the investigator are therefore much less important than their being seen to have received appropriate training (both in investigations and in equal opportunities matters), their overall professional credibility and their not having any prior involvement in the matter where possible.

  2. That training should include note of the clear interplay between investigations and diversity.  By way of example only, that might include offering a wider range of possible companions or representatives in investigation meetings for those whose culture or language or disability may make a normal interaction with the investigator more difficult.  Similarly, the investigator would have to get past the Western instinct to attach significant credibility to direct eye contact when dealing with witnesses whose cultural or religious background makes that less easy, perhaps through the wearing of a veil or similar, or the temptation to react badly at a conscious or unconscious level to people who by their background or medical condition might become louder or more excitable or speak less coherently when they feel nervous or under threat.

  3. Deliberately selecting a female or ethnic minority investigator for a diversity complaint does run the risk of sparking a discrimination claim by the person accused.  Just as that protected characteristic might (in fact, would be partly intended to) lead the accuser to feel that a decision in their favour is more likely, it may also lead the accused to fear the opposite.  As soon as that person is reassured that the ethnicity or gender of the investigator will not make any difference to the outcome, the obvious question becomes why the employer has felt it necessary to pick them for that role if that is the case.  Your selection of an investigator should so far as possible be on objective grounds, such as technical expertise, lack of relationship with any of the parties concerned, existing training or experience, familiarity with the relevant working environment, and so on.

  4. There is nothing implicitly discriminatory about serious incompetence, but if your investigator makes a total hash of the process, that is still an easy allegation for the disadvantaged party to make The conduct of the investigation process itself must therefore not just be, but also be seen to be, fairly scrupulous (though of course retaining the right to act anywhere within the old range of reasonable responses).  That means perhaps interviewing some witnesses suggested by the complainant even though you could reasonably conclude on a different day that they would not add anything, or being willing to hear representations on points which you are already pretty certain are too old to be remediable or too trivial to justify any redress in any case.  Where the investigator proposes some corner-cutting in these respects in order to get more quickly to the fundamental question of appropriate redress, if any, then this should be put to the person making the complaint or disclosure as a proposal, and his/her views on it heard before any final decision is made.  The investigator will not be bound by their views, but it would be hard to argue a lack of inclusion, even to yourself, if you have been specifically consulted on the detail of how the investigation is to be conducted.

  5. In order for the investigation process to retain its credibility, it is important that where relevant factual contentions are rejected in whole or part, the reasoning behind that decision is set out clearly and in detail enough that the person raising it can see why they were rejected. Like GCSE Maths, you can get points for showing your workings. That is likely to entail a slightly more detailed rehearsal of the investigator’s thought-processes than is often seen, but although that is extra work, it also goes to show both the accuser and any later lawyer or Employment Tribunal behind them that the complaint has been taken seriously.  That will make it harder for the complainant to believe reasonably (let alone prove) that the investigation output is itself the product of some form of discrimination.

  6. Where an investigation does find fault of a discriminatory nature, the whole process will lose credibility unless some sort of follow-up action is taken as a result.  That does not automatically mean disciplinary proceedings or dismissal, and it is important that complainants see that there will be some measure of proportionality in the employer’s response.  That will make it easier for employees to raise small points without fear of the matter running away from them, and also less alienating for those who might be accused of minor or inadvertent wrongdoing who need not feel that their whole job is at risk as a result.  There is nothing in the fact of a grievance or complaint relating to alleged discrimination or harassment (except where it is obviously intentional) which prevents mediation being the appropriate way forward in most cases.  Keeping in mind the basic principle that the investigation is only a means to an end (the resolution), the greater the extent to which a disclosure or grievance can be resolved amicably in that way, the smaller the damage done to necessary workplace relationships and so the smaller the likelihood of unlawful victimisation.

© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume XII, Number 12
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About this Author

David Whincup Employment Attorney Squire Patton Boggs Law Firm
Partner

Following 10 years at a Magic Circle firm, David has been head of our London Labor & Employment Practice since 1994.

His expertise gained from over 30 years as a specialist employment law practitioner cover a wide variety of employment-related issues, including individual and team recruitment issues, policy and contract drafting, disciplinary and grievance procedures, individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding confidentiality and...

+44 20 7655 1132
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