Investigation outcomes are challenged on process far more often than on substance. The safeguards that matter are decided before the first interview.
When an investigation finding is challenged, the challenge is usually directed at the process rather than the conclusion. Who conducted it, what they were asked to determine, what the respondent was told and whether the record supports the finding are the questions that decide the outcome.
Scope, fixed in writing
An investigation should begin with a written scope: the allegations to be examined, the period covered, the questions to be answered and the form of the output. Scope that expands informally as material emerges is difficult to defend later, and produces reports that address matters nobody was given an opportunity to answer.
Independence that is visible
Independence is assessed on appearance as well as fact. An investigator reporting to someone within the chain of the allegations creates a defect that no amount of rigour repairs. Where allegations touch senior management, reporting to a board committee is usually the appropriate route.
Fair process for the respondent
- Communicate the substance of the allegations in sufficient detail to allow a meaningful response.
- Provide a genuine opportunity to respond, with reasonable time to prepare.
- Put adverse material to the respondent before it is relied upon in findings.
- Record interviews consistently, and allow interviewees to confirm the record.
Privilege, considered early
Whether an investigation is intended to attract legal privilege should be decided at the outset, because the decision affects who conducts it, how instructions are framed and how material is circulated. Attempting to assert privilege retrospectively over documents already distributed internally rarely succeeds.
A defensible investigation is one where the record shows how each finding was reached.
Findings and what follows
Reports should distinguish clearly between fact found, inference drawn and recommendation made. Conflating the three invites challenge. Remediation should address the conditions that allowed the conduct, not only the individual conduct itself, since the former is what recurs.
This article discusses general process considerations and is not legal advice. Statutory investigation requirements apply to certain categories of complaint and must be followed.
