Conducting Internal Investigations

When and Why to Investigate

Not every workplace gripe requires a full-blown investigation, but many do. As a rule, if an allegation, if true, could result in serious disciplinary action or legal consequences, an investigation is warranted. This includes any claims of unlawful activity, such as theft, harassment, discrimination, violations of company policy that could lead to termination, or incidents that endanger health and safety. Investigations are also important when facts are disputed or unclear. For example, if two employees give different accounts of a shouting match on the factory floor, an investigation can help establish what really happened. In contrast, minor issues, like a one-off late attendance, or a trivial disagreement, might be resolved without a formal investigation, perhaps via a supervisory check or mediation.

However, be cautious. Seemingly minor complaints, for example, an employee saying “my supervisor is unfair to me,” can sometimes be the tip of an iceberg of more serious underlying issues like harassment or discrimination. It is better to err on the side of investigating than to ignore a plea for help. Aside from fulfilling legal duties, an internal investigation demonstrates the company’s commitment to justice.

Common law jurisdictions expect employers to act as reasonable and prudent employers. In the UK, the Burchell test for fair dismissal requires that the employer had a genuine belief in the employee’s misconduct based on reasonable grounds after carrying out as much investigation as was reasonable in the circumstances. A slapdash or biased investigation in such cases would render a dismissal unfair, even if there was some wrongdoing, because the process was deficient. Similarly, in Australia, employment tribunals, the Fair Work Commission or courts in unfair dismissal cases, examine whether the employer gave the employee a fair go, which includes putting allegations to them and considering any exonerating evidence.
Therefore, the why of investigations is clear. To discover the truth in a manner that stands up to scrutiny and to ensure any actions taken are justified and just.

Investigation Planning and Preparation

Before jumping into interviews, it is wise to plan the investigation. Identify who will be the investigator or investigation team. This person should be impartial and ideally not directly involved in the matter. In a small SME, impartiality can be challenging, as the HR or boss might know everyone. If so, consider engaging an external investigator or an external HR consultant for sensitive cases. Determine the scope of the investigation. What exactly do we need to find out? What company policies or laws might have been violated?

Also, preserve evidence early. This might mean securing relevant documents such as emails, logs, CCTV footage before they can be deleted or altered. For instance, if an allegation involves emails, IT should be instructed to preserve the email records of the individuals involved. If it involves a physical altercation, obtain any camera footage promptly. Many CCTV systems overwrite data after a period. Ensure that the complainant’s and the accused’s desks, files, or equipment are not tampered with. In some cases, you may need to suspend certain access, for example, the accused’s access to IT systems, to prevent evidence tampering, but balance this against not prejudging the person.
The Personal Data Protection Act in Singapore permits using personal data for such an investigation without consent, but you should limit access to that data to those involved in the inquiry.

Another preparatory step is to review any pertinent company policies or past cases. For example, if the allegation is workplace bullying, check if your handbook defines that and if similar complaints were handled in the past, to ensure consistency.

Finally, timeline. Set a reasonable timeline for the investigation stages, though it can be adjusted as needed. Investigations should be conducted without undue delay, but also without rushing and missing details. A typical SME investigation might aim to be completed in two to three weeks, whereas a complex case in a large organization involving many witnesses or forensic analysis could take longer. Keep upper management informed of the plan, but ensure they do not interfere or try to influence the findings.

Gathering Evidence

Interviews and Documents: The heart of an investigation is fact-finding. This usually involves interviews and document or evidence review. Key tips for interviewing in workplace probes:

Prepare Questions: Go into each interview, whether with the complainant, accused, or witnesses, with a prepared outline of questions. Start with open-ended questions, such as “Tell me in your own words what happened on Friday afternoon,” and then move to specifics. Avoid leading questions that suggest an answer.

Interview the Complainant and Accused separately. The complainant should be asked to recount all relevant details, identify any evidence or witnesses, and state what outcome they seek. Some just want behavior to stop, others may be out for an apology or more. The accused should be given a full opportunity to respond to each allegation. Remember the due inquiry principle. They must know the claims against them and have a chance to explain. Approach the accused’s interview with an open mind. There are cases where an allegation is a result of a misunderstanding or even a malicious claim, and the truth only surfaces by hearing both sides.

Witnesses: Identify any third-party witnesses and interview them in a way that does not unnecessarily reveal confidential details. For example, instead of saying “Alice accused Bob of sexual harassment, did you see Bob touch her,” you might ask a witness “Did you observe any interactions between Alice and Bob on Friday that seemed inappropriate or made anyone uncomfortable.” Keep witness identities confidential as much as possible beyond the investigation team, to prevent gossip or pressure.

Tone and Fairness: All interviews should be conducted in a professional, non-accusatory tone. The role of the investigator is to gather facts, not prosecute. Record the interviews with consent or have a note-taker present. Afterward, write up a summary and, if appropriate, have the interviewee confirm that it is accurate. This can be crucial evidence if later someone changes their story.

Documents and Other Evidence: Review emails, messages, timesheets, entry logs, financial records, whatever might be relevant to the case. In today’s workplace, a lot of evidence may be electronic such as texts or WhatsApp chats. Be sure to comply with privacy laws when collecting this, for example, only work-related communications should be reviewed unless personal ones are directly relevant to the allegation. If specialized knowledge is needed to interpret evidence, say, accounting expertise to review expense records in a fraud allegation, involve the necessary experts. Photographs, screenshots, and physical evidence such as damaged equipment in a safety complaint should all be collected and documented.
All evidence gathered should be kept confidential and ideally in a secure file or folder, with controlled access. It is good practice to compile a chronology of events based on the evidence, which helps in analyzing consistency of accounts.
Maintaining Impartiality and Avoiding Pitfalls: Investigators must consciously guard against biases. A common pitfall is confirmation bias, where one might give more weight to evidence that confirms an initial assumption and overlook evidence that contradicts it. To counter this, one technique is to adopt a hypothesis-testing approach. Ask yourself, “What facts would I need to see to disprove the allegation? Have I looked for those as diligently as for facts that prove it?”
Also, treat both the accuser and accused with respect and empathy. From an ethical standpoint, the accused is entitled to a presumption of innocence during the investigation. From the accuser’s perspective, they deserve to be heard and not dismissed. Striking this balance is challenging but important.

In a Hong Kong case, an employee accused a colleague of constant verbal harassment. The employer’s HR team, however, was friendly with the accused and conducted only a cursory interview of him, then concluded no issue without speaking to other witnesses who had been hinted at. The accuser eventually resigned and filed a complaint to the Equal Opportunities Commission. The company faced significant reputational damage for appearing to favor an insider. The clear lesson is that investigators must be, and be seen to be, neutral. If an internal HR person might be biased, due to personal relations or having made a prior judgment, bring in someone else.

In high-stakes cases, such as where high-level executives are involved or allegations of systemic wrongdoing arise, many firms in the UK and Australia hire external investigators, such as law firm solicitors or specialized workplace investigators, to ensure impartiality and to bring expertise. The cost of a proper investigation is almost always worth it when compared to the cost of a botched one, which can include legal claims, settlements, and lost employee trust.

Concluding the Investigation – Analysis and Report

Once evidence is gathered, the next step is to analyze it and reach findings. In employment matters, the standard of proof is typically the balance of probabilities, more likely than not. You do not need proof beyond reasonable doubt as in criminal law, but you should have reasonable grounds for your conclusions.

It can be helpful to list each allegation or key question and weigh the evidence for and against it. For instance:
Allegation: Manager X slapped Employee Y.

Evidence: Y’s testimony, detailed and credible. Z’s witness testimony, saw part of the incident. X’s denial. Medical report of Y showing redness on face. CCTV, no camera in room.

Analysis: Evidence leans toward incident occurring as described by Y. Minor inconsistencies in accounts do not undermine the core claim.

Finding: Substantiated that X slapped Y.

Some cases will be he said or she said without corroboration. In those, one must assess credibility. Look for contemporaneous notes, for example, did the accuser tell someone or make a diary entry, consistency of stories, motive to lie. If truly evenly balanced, an investigator might find allegation not conclusively proven. However, note that lack of proof is not the same as false. It may be recorded as inconclusive.

It is also possible to find that an allegation is false or malicious, but that should only be concluded if there is evidence of that. For example, the accused has an alibi or the accuser is found to have fabricated evidence. In the interest of fairness, particularly in Singapore, if an allegation is not proven, the accused should be cleared in record and if they were suspended, allowed to return with no prejudice. Likewise, if an accusation was made in bad faith, that itself can be misconduct by the accuser.

Prepare a written investigation report summarizing the process, evidence, findings, and recommended actions. This report is an internal document but should be factual and objective, since it might later be scrutinized by courts or authorities if the matter escalates. The report should not use inflammatory language. Stick to what was found and what company policy or rule those findings implicate.

Post-Investigation Actions

Conducting the investigation is half the battle. Acting on the findings is the other. If allegations are substantiated, the employer must decide on appropriate disciplinary or remedial actions. Consistency is key. Similar offenses should result in similar disciplinary outcomes unless there is a justification for difference.

Under Singapore’s employment law, if dismissal is the outcome for misconduct, remember the due inquiry requirement has been fulfilled by the investigation. Ensure you have documentation to show the employee was heard. If a lesser punishment is warranted, such as a warning, demotion, or transfer, communicate it clearly and monitor going forward.

If the allegation involved harassment or interpersonal issues, apart from punishing wrongdoing, consider measures to help repair the workplace environment. For example, counseling, team training on respect at work, reassigning reporting lines.
For the complainant, if their allegation was substantiated, ensure they do not face any backlash. Often, employers also circle back to the complainant to inform, to the extent appropriate, that the matter was addressed. You may not share all details, such as “Yes, we took disciplinary action against him” is sufficient. Avoid sharing specifics of another employee’s punishment.

If the allegation was not proven or was unfounded, it is equally important to close the loop. The accused, if exonerated, should be allowed to resume work without stigma. The complainant, if well-intentioned but unsubstantiated, should be thanked for raising the concern and perhaps gently told that the investigation did not find enough evidence to uphold it. If it was malicious, that is a conduct issue to address with the false accuser.

Finally, consider if any company policy or process changes emerge from the case. Sometimes an investigation reveals grey areas. For example, maybe the company had no clear policy on workplace relationships and that led to confusion. Use the lessons learned to improve prevention. This links to the next section on risk management.

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