The use of external workplace investigators to investigate harassment and discrimination complaints is on the rise. This is because, at their best, workplace investigators can deliver a process that is neutral, effective, and hopefully, legally defensible.
The job of finding, retaining, and supervising the investigator typically falls to the general counsel or director of legal services. How do you know whom to retain and what are the best ways to manage this professional relationship?
From our perspective as employment lawyers and workplace investigators, a number of things can help you deal with what is often a challenging process.
Consider these top five tips:
Obtain and check references before retaining an investigator and feel free to ask to review a report that has been sanitized of all confidential and client identifying information. Ideally meet with the person you are considering before passing on the work, or at the very least, have a lengthy phone conversation. Everybody and their uncle is calling themselves a workplace investigator these days, and offering up their services as experts in the field.
In fact, a quick Google search will result in a lengthy list of possible candidates. Keep in mind this is an unregulated area. Anyone can call themselves a workplace investigator, so the buyer must really beware.
Ask the investigator how many investigations he or she has done in the last two years. Ask them about the workplaces they are familiar with. Ask them the subject matter of the investigations. Look for someone who has depth of experience and excellent judgment.
Set your mandate
Be precise about your mandate. A good investigator will ask you at the time of the retainer what the mandate is. Here, you have a choice. The investigator can consider whether the complainant’s allegations are, as a matter of fact, true, and stop there.
The investigator can also consider whether any findings violate your policy or legislation, such as a human rights code. In most of the investigations we conduct, we are not asked to make recommendations, as that is ultimately the job of counsel.
If you do not wish there to be any recommendations, make that absolutely clear at the time the investigator is retained. As they have spent many hours interviewing witnesses and considering your policy, the investigator may have a strong opinion as to what should happen, and how to fix the problem. Their view may be different than your client’s, and once made, these recommendations become part of the record. If you don’t implement them, and the matter investigated becomes litigious, these unfulfilled recommendations can and will be used against you.
Give some thought as to whether you wish the investigation process, report, and surrounding communication to be privileged. If you do, it is much easier to attempt to set this up at the beginning of the retainer than mid-way through. We say “attempt” because the law with respect to privilege of workplace investigation material is not settled.
There is a possibility that no matter how thoughtful you are in terms of the setup at the beginning, no privilege exists if the matter becomes litigious. With this in mind, you should ensure that if disclosed, all communication between you and the investigator, including the report, will not embarrass you, and will show that the process was unbiased, fair, and thorough.
Budget and timeline
Most investigations have surprises that affect the time by which they can be finished, as well as the cost of finishing them. For example, a key witness may suddenly take ill and delay the process for a few weeks, or a complicated factual matter is raised by the respondent that takes some time to sort out. It is advisable to get some sense from the investigator at the outset how long they think the project will take. Be prepared to be flexible and reasonable.
Similarly, ask about the overall cost of the project, but again, as there are likely to be unplanned events, be flexible in this regard as well.
Insist on clear and timely communication about the process as it unfolds. In our view, asking about how many witnesses there are to be interviewed, when the respondent is available, how long it will take to finalize a report, and can I know how much time has been spent on the case to date, are all appropriate questions and do not have an impact on the investigator’s impartiality and neutrality.
This is contrasted to questions about how the complainant’s evidence seemed, or if the respondent was credible, or if a witness corroborated an allegation, which should be avoided mid-process.
Janice Rubin is the managing partner and senior counsel with Rubin Thomlinson LLP in Toronto.