How to Be “Thorough” and “Timely” in Workplace Investigations

The importance of scope in workplace investigations

Employers have a legal duty to inquire into material concerns that come to their attention, both informal (conversations, emails, surveys) and formal (filed complaints and grievances).

At the same time, they are required to complete these “inquiries” in a timely and efficient manner.

It is challenging to meet both expectations especially when the scope of the review broadens over time. Reviewing all that comes to their attention will result in significant and costly delays for those who brought forward specific concerns and are in desperate need of clarity and closure.

While there is no “one size fits all” approach to this circumstance, a critical first step is to clearly define the rules around the scope of an investigation (which should be similarly applied to internal and external investigators. Here are some suggestions:

1. Clearly define the type of inquiry you’re conducting – and the “rules” related to that review (and be sure that participants are made aware of this when introducing them to the process). Is it an informal, general scan or is it an investigation into specific concerns? If it’s a scan, then everyone on the team should be interviewed for the same amount of time (30-45 minutes). If it’s an investigation, then only parties and potentially relevant witnesses should be interviewed – with flexible time allotted for each interview to ensure the specific issues being investigated are properly canvassed.
2. No investigator should interview an entire team as part of an investigation; and no investigator should convert an investigation into a general scan. They are two distinct processes, with differing legal requirements.
3. At times, an investigator is told about general team dysfunction which may warrant a thorough scan. In these circumstances, the investigator may recommend a scan to be conducted at a later date (and preferably conducted by a different person). This allows each process to be conducted according to its own rules – and reduces the length of time associated with a formal investigation.
4. During an investigation, a party or witness may disclose specific concerns that were not apparent to the employer at the outset of the inquiry. If there is a clear nexus between new concerns and the ongoing inquiry, then it likely is reasonable to broaden the scope of the investigation to include a review of the new issues. This often arises when the new concerns are similar in nature to the allegations being raised against the existing parties.
5. If there is not a clear nexus to the ongoing review, then the concerns should be investigated through a different process at a later time. An example of this might occur when a supervisor accused of harassment raises new performance issues on the part of the complainant. They should be reviewed and addressed; but not as part of the harassment investigation against the supervisor.
6. No investigator (external or internal) should unilaterally determine the scope of the review or whether it should be expanded. External investigators may not be aware of other processes underway and other relevant factors that affect this determination. There also may be a perceived conflict of interest in an investigator unilaterally expanding the scope of a review, given that it results in a longer and more costly investigation. To avoid this, investigators should seek clarity and instructions from those overseeing the investigation. Investigators may recommend an expansion or change in scope but the organization needs to make the final decision.

While organizations have a duty to inquire into issues that arise, they have some discretion in determining how and when such matters will be reviewed. Clarity in defining – and re-defining – the scope of specific workplace investigations helps ensure that reviews are conducted in a timely and cost-effective manner, allowing individual parties the closure they seek.

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