Investigations into allegations of misconduct or serious misconduct can be time consuming and stressful for employers.  A complex investigation can tie up staff, and prevent them from doing their usual tasks. 

An external investigator can also be useful if there are issues around neutrality or bias (for instance, if the person accused of wrongdoing is high-ranking, or connected to the decision-maker). 

An external investigator will only collect evidence about what happened, and will not make the final decision about whether there is, or is not, misconduct or how that misconduct should be dealt with (although they can make recommendations). 

Investigators will typically do interviews with witnesses, and will collect and review documents, footage, records and so on.  They will usually summarise their findings in a report to the decision-maker.  The decision-maker will then decide how to proceed, based on the facts found by the external investigator. 

When may an external investigator be useful?

· If the allegations are serious, or complex and likely to take a long time or require specialist skills (for example fraud, embezzlement, substance abuse, or health and safety breaches);

·  If there is an issue with a toxic work environment or problematic organisational culture, a fresh pair of eyes may help to see things that are otherwise taken for granted or missed (for example, a complex bullying allegation, or allegations of unconscious bias);

· If the allegations are sensitive (for instance sexual harassment allegations);

· If there are questions of credibility (for instance, when the allegation of inappropriate behaviour is made by a customer about a staff member, an internal investigator may help to avoid the perception that the investigation is otherwise biased, or if the allegation is made against a high-ranking employee, or an employee with a special relationship with the decision-maker, a neutral person may be best to collect evidence); or

· If there is an organisation-wide issue and the offender has not been identified (for example, if money is going missing).

What are the benefits of using an external investigator?

1. They should be neutral and independent, and this helps support the perception of an unbiased investigation.  This may in turn reduce any claims of bias (which could lead to a personal grievance).

2. An external investigator may possess special skills (like forensic accounting skills, interview skills, employment law knowledge, IT skills, and so on).  This may help to make sure all the relevant facts are placed in front of the decision-maker, and therefore make the process fairer and less likely to be challenged.

3. An external investigator will allow staff to carry on with their usual jobs, and so allow the business to carry on running efficiently.  It may also achieve a quicker outcome, as the external investigator will be focused on this task only, rather than splitting their time doing their usual tasks. 

What are the cons of using an external investigator?

1. Using an external person to do the investigation usually requires an investment in an expert. 

2. Using an unskilled, unqualified or unsuitable investigator may result in challenges to the outcome and/or personal grievance being raised. 

Those in the business of providing investigation services are required to be licensed as Private Investigators under the Private Security Personnel and Private Investigators Act , unless they are exempt from needing a licence (for instance lawyers).

If you are seeking the service of an independent investigator, you should make sure that you are engaging suitably qualified, and licensed, individuals.

To read more about what a fair investigation process looks like, click here.

 

Leading law firms committed to helping clients cost-effectively will have a range of fixed-price Initial Consultations to suit most people’s needs in quickly learning what their options are.  At Rainey Collins we have an experienced team who can answer your questions and put you on the right track.

 

Jaenine Badenhorst

Associate Lawyer


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