June 1, 2021
Should you hire an external workplace investigator?

An employee has complained of inappropriate behaviour in the workplace. Another has complained of systemic discrimination in promotions. Both complaints are concerning. You know your organization must respond, but may be wondering whether you should outsource that task to a professional. 

The reality is that employees are now more likely than ever to formally air their grievances in the workplace.  Long gone are the days where an organization can comfortably put those complaints on the back-burner. In the age of social media and heightened socio-political sensitives, an employer’s response  to workplace complaints can quickly define its brand and its business. Recent events have confirmed that no organization is beyond the pale, whether it be government, tech giants, and even large corporate law firms. Naturally, this has led to a cottage industry of professional workplace investigators.  But is a professional really required?

Back to basics

Every Canadian employer has a duty to investigate complaints of workplace harassment/sexual harassment under provincial or federal workplace health and safety legislation. Even when not expressly mandated by law, investigating a complaint in good faith is a prudent HR and legal strategy.  It fosters an inclusive culture and helps the employer control the narrative should things escalate down the line.

The core requirements of an investigation are not complex.  The allegations should be put to the accused and their version of events should be recorded. Having regard for the facts, the company must determine the appropriate response, which can include corrective action. There are however critical nuances.

Impartiality

If a workplace investigation is not conducted fairly, it is of no benefit to anyone involved. An unfair investigation can inflame the initial complaint and create additional liability. In small organizations without a dedicated HR department, it can be challenging to determine who should do the investigating, particularly when the complaint is against a founder who might also be the head of HR. This does not mean every business must have a dedicated HR department, or anyone with particular expertise in HR to conduct the investigation, so long as they respect the core principles.  However, under no circumstances should the accused be involved in the investigation beyond providing their version of events.  If the investigator is a relative or spouse of the accused, that will also raise doubts as to their impartiality. 

Deference

Part of the appeal of an external investigator is the prospect of impartiality, or at least the optics of it.  As such, organizations cannot be faulted for assuming that the investigator’s decision is a full defence to the complaint, particularly when the investigator is a well-known lawyer or from a law firm specializing in workplace investigations. That assumption is however false. The findings and conclusions of an external investigator hired by the employer are not legally binding, even if the investigator is a well-respected, retired judge. 

Say, for example, an external investigator’s report states that, in their opinion, the accused lied to them and to the employer and, is guilty of willful misconduct. Relying upon this report, the company then fires the employee for cause, taking comfort in the fact that their decision to terminate is backed by the investigation report. In the lawsuit which inevitably follows, the judge will have to come to their own conclusion about the case, despite the investigator’s findings.

Furthermore, courts are alive to the reality that an external investigator hired by the employer, unlike the judge presiding over the lawsuit, has a financial interest in the investigation. Even the noblest investigator cannot be fully impartial in the truest sense of the word when they are compensated by the employer.

Cost

In many cases, this can be the most important deciding factor.  While it has become customary for many organizations to refer every complaint to an external investigator, the investigations conducted by lawyers and retired judges can cost tens to hundreds of thousands of dollars.  Before even considering hiring an external investigator, organizations would be wise to assess the extent of their liability with employment law counsel.  An experienced employment lawyer should be able to tell you approximately what a case is “worth.”  If the worst-case scenario is significantly cheaper than the investigation itself, which will likely require additional steps and costs after its conclusion, then you may find the external investigator is a gratuitous and unnecessary expense.

At the end of the day, the decision of whether to hire an external investigator should not be made lightly, nor should it be assumed that one is required in every case.