An Investigator’s Conduct is Important
By Joseph Swerdzewski
Having for many years been an investigator, supervisor of investigators and responsible for the management of a large investigative program which annually performed as many as 5,000 investigations, I firmly believe how an investigator conducts an investigation has a major impact on the value and integrity of the investigative process. How investigators conduct themselves during an investigation has a major effect on the credibility and validity of the investigator’s findings, recommendations, and conclusions. It also has a significant impact on how employees see the fairness of any action management takes as a result of the investigation. How the integrity of the investigator is perceived by the parties subject to the investigation has a significant impact on how the findings are accepted. Investigators who are neutral and objective will have a much greater likelihood of their findings being accepted than investigators who are perceived to be biased.
There is no official code of ethics for workplace investigators. They are not subject to any cannons of ethics enforceable by a third party such as a bar association or medical association. The need for integrity in an investigation can be self-correcting. The lack of integrity can lead a third party, who is reviewing any action brought against an employee based on the investigation, to discount the evidence submitted because it may have been part of a biased investigation.
Why Biased Investigations Hurt More Than They Help
A bias is prejudice in favor of or against one thing, person, or group compared with another, usually in a way considered to be unfair. A biased investigation can come about for a variety of reasons. Sometimes, investigators determine before the investigation what outcome they would like to have and conduct their investigation to prove the predetermined outcome. In doing so, they dismiss evidence that may not be in agreement with the outcome they want to achieve. They also may not pursue obvious lines of inquiry because they may lead to results inconsistent with their predetermined outcome.
There are also lazy investigators who do not spend the time necessary to truly root out the issues and the facts necessary for a thorough investigation. They don’t spend the time to prepare and analyze the facts they need together to be able to make considered recommendations. Lazy investigators can be better trained and better supervised to improve the quality of their investigations.
Biased investigations rarely withstand the scrutiny of a third-party reviewer such as a judge or arbitrator, who can easily see the prejudice in the way the investigation was conducted. Biased investigations provide ample opportunities to anyone representing the employee for casting doubt on the action being taken against the employee. However, an investigator who lacks integrity is more difficult to correct.
A management decision maker needs to know both the evidence that supports taking action against an employee and supports what management has done, and the evidence that is unfavorable to taking action. Only when the decision maker has all the evidence, both favorable and unfavorable, can a supportable decision be made. An investigator who predetermines the outcome can deny the decision maker all the evidence needed to make the right decision. A biased investigation may lead to evidence being omitted, which may eventually come to light when a defense against the action taken by management is heard in an appeal. If there are holes in management’s case, it would be better that management know about them before making a decision and not while in a hearing before an arbitrator or other third party.
Confidential Nature of the Investigation
Maintaining the confidential nature of an investigation leads to the belief in the integrity of the investigator by those being investigated. Sharing information obtained from employees participating in the investigation with other participants or others not involved in the investigation can undermine an individual employee’s desire to participate. Sharing what has been learned in an investigation with other employees to be questioned can contaminate their testimony and lessen their credibility before a third party such as an arbitrator or judge who may be reviewing on appeal any action taken.
An investigator must conduct an investigation in as neutral a manner as possible. Neutrality means having an absence of bias. An investigator who is a supervisor or representative of management may not be considered a neutral investigator since he or she is considered a part of management. They are from one side of the controversy, looking to gather facts and make recommendations or conclusions. As a part of management, their investigation may appear to employees to be inherently biased. However, the greater the effort made by the investigator to remain neutral during the investigation the greater the likelihood the investigation will be deemed to be fair. Also, the more neutral an investigator is in conducting the investigation, the greater the likelihood those employees will provide information necessary for making a valid decision.
How investigators conduct an investigation reflects on their character and integrity. The more neutral and unbiased an investigator acts, the more he or she will be considered fair and the findings upheld. In addition, a neutral, unbiased investigator leads to greater participation by employees when they know the investigator is trying to obtain accurate facts and does not already have a fixed position on the outcome of the investigation.