Workplace Investigator Training: What Does “Qualified” Really Mean?

In the first two articles in this series, we looked at the questions I would ask when selecting a workplace investigator: What is your investigation style? and Who should investigate?

This time, the question is: Is the investigator sufficiently trained?

It is not enough to have simply taken a course on workplace investigations. There are many excellent, robust courses out there (and some, not so much). But investigating is a bit like driving a car: getting your license demonstrates that you have met the minimum requirements to drive, but there is no substitute for time behind the wheel.

So, how do we assess whether an investigator is sufficiently trained? And, perhaps even more importantly, how do we create conditions where we can support investigators who are still developing without compromising the integrity of the investigation?

As with the previous articles, I have included some practical questions at the end of this article that you can use when assessing a prospective investigator.

The first thing we acknowledge is that “sufficiently trained” really has three components: knowledge, skills and experience.

Knowledge

Your investigator must have the subject-matter knowledge required for the particular investigation. If you are investigating a complaint involving systemic racism, for example, you require an investigator who understands the legal and factual issues that go with it. Investigators need knowledge of the applicable legislation and legislative principles in the jurisdiction where the investigation is taking place. The specific subject of the complaint also requires an investigator who is properly trained in that subject.

But legislation is not the whole answer.

Your investigator also needs an understanding of the common law—the law that has developed through judicial decisions. For most people, common law is difficult to access and even more difficult to stay current on.

In my observation, this piece is often unknown or underestimated in its value. For more than 20 years, I have had clients call to tell me, “But the Code says I can do this.” My response is often, “Yes, I know—but the courts have added to it, so the Code is not the full answer.” The two go together.

There is also the knowledge required to conduct a fair investigation: evidentiary principles, procedural fairness and natural justice, credibility assessment, and the applicable standard of proof, to name a few.  For example, the standard of proof in most workplace investigations is the balance of probabilities—essentially, whether something is more likely than not to have occurred. Yet we regularly see investigators approach findings as though they need to be proven beyond a reasonable doubt.

I understand why. When an allegation is serious, and particularly when the consequences of a finding could include termination of employment, it is natural to want to be very certain.  But applying a higher standard than the law requires can create its own problem. An investigator may dismiss a complaint that has actually been established on the applicable standard of proof.  The investigator needs to understand not just the law, but how the law applies to the evidence in front of them.

Skills

Knowledge alone does not make someone a good investigator. The investigator also needs the skills to apply that knowledge.

One of the most important skills is interviewing. Understanding how to ask probative questions rather than leading questions can alter the course and quality of an investigation. Knowing when to probe further, when to challenge an answer and when to move on requires judgment.

Credibility assessment is another critical skill. Credibility is not a “gut instinct” exercise. An investigator needs to be able to identify the factors that support or undermine credibility without allowing personal reactions, assumptions or bias to take over.

Report writing is another key skill and, like all skills, one that requires practice.  We often see reports that are not as thorough in their analysis as they need to be. Yes, the parties and the employer want to know what the “answer” is: Did they do it?  But a useful report is more than the answer. It is a record of the process and the thinking that got you there. What evidence did the investigator rely on? What evidence did they reject, and why? How did they resolve conflicting accounts? Did they give each person a fair opportunity to respond?  If the investigation is later challenged, the report becomes critical.

And this is where training becomes particularly important. An investigator may know the theory of procedural fairness, for example, but that does not mean they will recognize a procedural fairness problem when it arises in the middle of a complicated investigation. 

That requires skill.

Experience

Finally, there is experience.  Experience is the subtle art of knowing whether to push harder or ease up on a line of questioning to help a person open up with facts. It is being able to truly listen to what you are told, but also hear what was not said.

It is knowing when an apparently insignificant detail may actually matter. It is recognizing when two accounts don't quite fit together and knowing how to explore the discrepancy without turning the interview into an interrogation. 

It is being able to navigate office politics, organizational pressures and strong personalities while maintaining a fair investigative process.

And it is knowing how to deal with people who attempt to redirect the investigation—whether by attacking the complainant, attacking the investigator, denying obvious facts, or attempting to turn the allegations back on the person who made them. An experienced investigator is more likely to recognize these dynamics and keep the investigation on track.

Experience is also what helps an investigator understand when they don't know something.  That may be one of the most important characteristics of a good investigator.

A developing investigator who says, “I haven't encountered this before, so I need to get some help,” may be much safer than an experienced investigator who assumes they already know the answer.

When each of my children obtained their driver's license, I used to remind them that passing the test meant they had satisfied the minimum requirements of the law. Becoming a skilled driver required continuous improvement behind the wheel.

Investigating is much the same.

There is no shortage of examples where an investigation has been criticized because the investigator failed to properly apply principles of procedural fairness, did not give someone a meaningful opportunity to respond, allowed personal relationships or organizational pressures to affect the process, or approached the investigation as an exercise in proving a predetermined conclusion rather than finding facts.  These are not simply technical mistakes. They can undermine the entire investigation.

 That does not mean that an investigator needs decades of experience before they can conduct a good investigation. A developing investigator can be very capable.  But a developing investigator should not be expected to navigate complex investigations entirely on their own. The organization should understand what safeguards are in place to support the investigator and protect the integrity of the process.

 Those safeguards might include mentorship from a more experienced investigator, review of the investigative plan before interviews begin, peer review of the report, or legal review where appropriate.

The point is not to prevent people from developing investigative skills. The point is to make sure that someone's learning curve does not become the organization's risk.

So, how do you assess whether your investigator is sufficiently trained?

Here are some questions we like to use as a starting point:

1. What formal training do you have in workplace investigations?
   What did that training cover? Did it address investigative process, evidence, procedural fairness, natural justice and standards of proof?

2. What training do you have in investigative interviewing and questioning techniques?

3. What knowledge or experience do you have with the specific subject matter of this complaint?
   For example, bullying, harassment, discrimination, racism, occupational health and safety, or another specialized issue.

4. How do you keep your investigative knowledge and skills current?

5. What checks and balances do you use to review your investigative process?
   For example, do you have someone peer-review your investigative plan or report?

6. Without breaching confidentiality, can you describe a particularly challenging investigation and how you handled it?

7. If you are still developing as an investigator, what safeguards are in place to support your development while protecting the integrity of the investigation?

 And finally, when assessing experience, it is important to distinguish between 12 years of experience and 1 year of experience 12 times.

 The number of years someone has been conducting investigations tells you something. It does not tell you everything.

 What matters is whether they have continued to learn, developed their skills, encountered increasingly complex situations, learned from their experiences and know when to ask for help.  Because a good investigator never really stops learning.