Ideally, a professional environment is one free of interpersonal drama and disturbance, but workers are only human. Inevitably, as long as we are asked to work with each other, there will always be the possibility for problems. And when those problems arise, it falls upon the organization to investigate all associated complaints and take appropriate action. This is easier said than done, however, as any compliance officer can appreciate.
Behavioral disturbances may be noticed in the form of harassment, discrimination, favoritism, and victimization. It has become common to receive information from victims or whistleblowers through formal and informal channels. In addition to the sensitivities involved in investigating on such issues, these investigations require additional time and effort. As the concern is extremely sensitive, opportunities for gathering tangible evidence are low. Most often, the evidence obtained is circumstantial. These investigations are driven by the facts mentioned in the initial complaint and statements obtained from the subjects of the investigation, whistle blowers or witnesses, which are subsequently clarified with relatable circumstantial evidence.
Considering this, we examine the eight key pitfalls to avoid while conducting behavior-related investigations at the workplace:
Consideration for legal precautions. Care must be taken to comply with the principles of natural justice. Adequate notice must be provided for and investigation must be free and fair. The parties involved must be permitted to issue written statements, if they wish to do so. Investigators must be given necessary leeway to ascertain what has transpired. While it is not unusual for an investigative interview to get uncomfortable, a smart investigator should know when to pull back. There must not be any force or coercion. The intent of the exercise must be understood and respected.
Conducting a behavioral investigation requires a systematic approach to fact-gathering, exploring all available sources of evidence, and creating a detailed guideline to conducting interviews. If followed, these steps can help avoid the common pitfalls of behavioural investigations.
Inadequate correlation of sources of circumstantial evidence. With limited opportunity to rely on direct evidence, it is imperative to gather relevant circumstantial evidence. Such evidence may be in the form of photographs, mail, SMS/Whatsapp messages, or others such as access logs, CCTV footage, hotel records, or even security records. In every investigation, it is important to examine the various sources of evidence that are relevant and available. Ignoring various sources may limit the ability of the investigator to validate the information provided by the victim.
Extended focus on general behavior of the subject. While it is well known and understood that a person under the influence of alcohol will demonstrate abnormal behavior, few understand that a person with low blood sugar levels may show similar behavioral symptoms. Behavioral investigations include examining an incident or a series of incidents. These incident(s) may be influenced by multiple circumstances or emotions. Looking beyond incidents to the generic behavior of the subject may, sometimes, provide a skewed view of facts.
Inadequate details from the whistleblower. The whistleblower may be the source of the issue. The whistleblower provides the details of behavior leading to the investigation. This could be either in a select incident or a series of incidents. Seeking complete details from the whistleblower on the incident and surrounding circumstances may throw light on the incident.
Failure to adopt a sensitive interview approach. In certain investigations, the interview may involve conversations that are sensitive and/or personal (e.g., a conversation regarding “sexting” between 2 employees). Besides the attempts to provide comfort for the interviewee to share information, it is essential for the investigator to consider the necessary precautions with reference to sensitivities attached. This will include having a female representative present whilst interviewing another female, adopting the low-tone inquiry structure and non-judgemental approach toward the context under discussion.
Failure to consult neutral witnesses. Witnesses may be divided in expressing that the respondent’s behavior was inappropriate. The investigator must ensure that adequate neutral witnesses have been considered for the purpose of inquiry, which will ensure that the conclusions of the investigation are not biased.
Placing reliance on emotions. With discussions around an individual’s behavior, there are bound to be emotional outbursts. This may be from the victim or the subject. These emotions may be designed to include falsification of what transpired or an attempt to divert the interviewer’s attention. The interviewer must be conscious of this and must take care to record all key points exchanged during the interview.
Conclusion-biased reporting. An investigation report should be independent and should set out the facts and observations including the chain of events, people involved, and timing of the incident. Witness statements and circumstantial evidence, if any, should also be included. The conclusion must be well-reasoned—any approach to present the report based on the conclusion that the investigator has arrived at may be seen to be biased.
A non-judgemental interview process that seeks to clarify the material issue(s) and to gather evidence in a sensitive and appropriate manner is crucial when dealing with such complaints. Conducting a behavioral investigation requires a systematic approach to fact-gathering, exploring all available sources of evidence, and creating a detailed guideline to conducting interviews. If followed, these steps can help avoid the common pitfalls of behavioural investigations.
Sahil Kanuga is co-head of the Commercial Disputes Practice within Nishith Desai Associates.