​Workplace Investigations: When are they Necessary?

A formal workplace investigation may be necessary when an employer needs to establish disputed facts about alleged misconduct, bullying, harassment or other serious workplace concerns before deciding what action to take. However, not every complaint requires a formal investigation.

When a complaint lands on your desk, it can be tempting to immediately jump to a formal workplace investigation. After all, investigating can feel like the safest response: gather the evidence, interview everyone involved and make a finding.

But a formal investigation is not always necessary, and in some cases, it can make an already difficult situation worse.

The real question isn’t simply, “Has someone made a complaint?” It’s: What does the business need to establish, what risks are present, and what is the most appropriate way to respond?

What is a workplace investigation?

A workplace investigation is a structured process for examining allegations and establishing what happened. It typically involves clarifying the allegations, gathering relevant evidence, interviewing the people involved and making findings based on that evidence.

Those findings help the employer decide what action, if any, is appropriate. Starting an investigation does not mean misconduct has occurred or that disciplinary action will follow.

When is an investigation necessary?

A workplace investigation is generally appropriate where the business needs to establish disputed facts before deciding what action to take. This may include allegations of:

- bullying or harassment
- sexual harassment or discrimination
- fraud or dishonesty
- violence or aggression
- serious misconduct
- significant breaches of workplace policies, such as confidentiality, safety, conflicts of interest or misuse of company systems or property.

An investigation may also be necessary where disciplinary action, including termination of employment, could follow if allegations are substantiated. In those circumstances, the employer needs a fair and reliable factual basis for any decision it makes.

Ultimately, the response should be proportionate to the issue. The more serious the allegation, the greater the potential consequences and the more disputed the facts, the stronger the case for a formal investigation.

​Do employers need a formal complaint before investigating?

No. An employer may need to assess and respond to a workplace concern even when no formal complaint has been made.

One mistake employers can make is assuming they don’t need to act because an employee hasn’t made a “formal complaint”.

Serious concerns can come to the business through an informal conversation, exit interview, witness, anonymous report, employee survey or even a customer. If the information indicates a genuine workplace risk, the employer may still need to look into it.

This is particularly important where the behaviour raises a potential psychosocial risk. Bullying, harassment, violence and aggression, and conflict or poor workplace relationships can all be psychosocial hazards. Employers should not wait until someone has suffered a psychological injury before considering whether there is a risk that needs to be managed. Work health and safety laws require psychosocial risks to be eliminated where reasonably practicable, or otherwise minimised so far as is reasonably practicable.

That also means conduct complaints shouldn’t always be viewed as an “HR issue” in isolation. There may be a work health and safety component as well.

​Addressing an immediate risk should not wait until an investigation is complete. Interim measures may be needed to protect the people involved without prejudging the outcome.

​When might a formal workplace investigation not be the best option?

Not every interpersonal issue needs written allegations, witness interviews, statements and formal findings.

Where the conduct is relatively minor, the facts aren’t genuinely disputed, and disciplinary action is unlikely even if the concern is established, another approach may be more appropriate.

This might include:

• a facilitated discussion – a relatively informal, structured conversation to clarify issues, address misunderstandings and agree on practical ways of working together.  
• mediation – a more formal dispute-resolution process led by an impartial mediator, often used where workplace conflict has become more entrenched and the parties need help reaching an agreed resolution.
• coaching or training – appropriate where the issue relates more to a skills or capability gap than deliberate misconduct. For example, a manager may need coaching on giving feedback appropriately, or a team may benefit from training on respectful workplace behaviour, communication or managing conflict.
• an informal management discussion – where a manager addresses the behaviour directly with the employee, clarifies expectations and gives them an opportunity to improve without moving straight to a formal disciplinary process.

Formal investigations can be time-consuming and stressful. They can also entrench people in their positions and further damage working relationships when used unnecessarily.

The key is to triage the issue before choosing the process. Consider the seriousness of the allegations, whether the facts are disputed, the possible consequences, whether there is an ongoing risk and whether a less formal process could realistically address the problem.

​Why a trauma-informed workplace investigation matters?

Once you decide an investigation is necessary, how it is conducted matters just as much as the decision to investigate.

Investigations can be confronting for complainants, respondents and witnesses. Participants may also come into the process with pre-existing trauma that the employer, and investigator, knows nothing about.

A poorly managed process can increase distress, affect a person’s ability to recall or communicate information clearly and potentially create further psychological risk.

This is why a trauma-informed approach is increasingly important.

Being trauma-informed doesn’t mean automatically believing the complainant, going easy on a respondent or lowering the level of scrutiny. The evidence still needs to be tested and findings need to be based on the facts.

Instead, it means conducting the process in a way that helps participants feel safe, respected and heard, while also giving them confidence that the process is fair and impartial. It involves being clear about what will happen and why, providing appropriate support, allowing people a reasonable level of choice where possible, and recognising that individuals may respond very differently to stressful or confronting situations.

In practice, that might mean clearly explaining the process, maintaining confidentiality as far as possible, offering a support person, allowing reasonable breaks, avoiding unnecessarily adversarial questioning and, where appropriate, giving participants some choice about matters such as the timing, location or format of interviews.

Importantly, a trauma-informed investigation still needs to be procedurally fair. The respondent should understand the substance of the allegations and have a genuine opportunity to respond. Relevant evidence needs to be considered objectively and the investigator needs to approach the matter impartially.

Who should investigate?

Not every investigation requires an external investigator. Many matters can be appropriately handled internally by an experienced HR professional or manager.

However, an external investigator may be appropriate where:

• allegations involve senior leaders
• there is an actual or perceived conflict of interest
• the allegations are particularly serious or sensitive
• the issues are complex
• there are significant potential consequences.

The question is whether the investigator can conduct the process competently, objectively and fairly, and whether the people involved are likely to have confidence in the process.

Need help deciding whether to investigate?

A workplace investigation shouldn’t be the automatic response to every complaint.

Used appropriately, an investigation provides a structured way to establish the facts, manage workplace risks and give the business a sound basis for deciding what should happen next.

Used unnecessarily, or conducted poorly, it can create additional problems.

The best starting point is careful triage: understand the allegation, assess the risk, determine what actually needs to be established and choose a process that is proportionate to the issue.

If you’re unsure whether a workplace concern warrants a formal investigation, get in touch with Skildare. We can help you assess the issue, understand the risks and determine the most appropriate way forward.    

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