Gillian MacLellan: In the middle of a coronavirus pandemic, handling workplace investigations.


Via Gillian MacLellan

Recently, we’ve talked a lot about workplace investigations, particularly investigations into allegations that have emerged in the aftermath of the Black Lives Matter movement. These are sensitive and sensitive matters for managers to investigate at the best of times, but they are made much more complex by the current circumstances of remote work.

Video calls and virtual meetings have become part of the everyday lives of remote employees.

When interacting with our colleagues, technology has helped us to retain an aspect of human contact. However, through video conferencing, there are certain organizational experiences that employers need to look at differently.

One of the cases where nothing beats face-to-face contact is performing an internal workplace investigation. This is particularly the case when managers deal with claims of abuse, sensitive workplace problems and contradictory proof of an incident.

An employer investigating an accusation of bias in their workplace must, in any event, ensure that they select a suitable investigator. I am referring to an investigator with the expertise and experience needed to perform an investigation of this type. If they do not have the necessary qualifications in human resources, law, and soft skills, anyone who has experience in investigating fraud is not inherently appropriate to perform this form of investigation. Does the investigator grasp the intricacies of vocabulary, ethnic bias, microaggression, and intersectionality? What questions are they going to ask in order to understand the living experience of a person? This is a tall order, but it’s crucial that you get it right.

Another characteristic we see with regard to questions posed in the aftermath of the BLM campaign is that, in addition to the more discrete reported events involving the plaintiff, they also contain claims of larger cultural and institutional racism. It can also be hard to deal with this wider aspect. The inclination is to concentrate on the particular claims being made, but they risk ignoring the broader picture, the cultural undertones of an enterprise where the real issue may lie, when managers do this. When an employer is serious about investigating racial bias claims, the inquiry must be broad enough to interview a cross-section of workers in order to understand their subjective experiences. This information must be analyzed by an experienced investigator along with other data sources, such as employee survey reports, statistics on other grievances, etc.

The difficulty of performing such an investigation remotely still exists. To make the employee feel relaxed and that they are treated with dignity, the way an investigator enters the room, speaks to the employee and establishes relationships is very critical. Social scientists will inform you that nonverbal communication is more important than the actual words you say – your body language, stance, hand movements, facial expressions. Both of these nonverbal signs can also help an investigator decide whether anyone is trustworthy. In this field, investigators must inevitably weigh contradictory accounts of events; seldom do we see admitted claims of racism. The facts and judge the account (and who) to believe must be weighed by investigators. The “balance of probabilities.” is the standard of evidence they must deal with. In other words, it is more probable than not that the incident happened. In a simulated world, this test can become even more complicated.

Have you educated those who need to perform this type of investigation in your organization? If not, you should certainly place it on your list of to-do tasks. Workplace learning is a high-risk practice for employers, and if done poorly, the legal, cultural and PR risks are important.

Gillian MacLellan is a partner at CMS, a multinational law firm.


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