Workplace Investigations Conflict of Interest

Workplace Investigations Conflict of Interest or investigator bias, what is the difference. In my last article I wrote about the biases that workplace investigators may encounter and have to manage during a workplace investigation. Link here

Since publishing the last article I was contacted and asked, “what is the difference between conflict of interest and an investigator bias?”

The dictionary defines, a conflict of interest as;

“A conflict of interest occurs when a person has a private interest that could influence the performance of his/her professional duties and responsibilities”

A bias as;

“An inclination or prejudice for or against one person or group, especially in a way considered to be unfair.”

So for me a bias is something that occurs in the mind of the investigator that may be influenced by external factors whereas a conflict of interest is when external factors influence the mind of the investigator.

Just like a bias a conflict of interest can be actual, potential or perceived.

Conflicts of interest may be more difficult to avoid when conducting internal investigations as in most cases the investigator may know and/or have dealt the parties involved, just like bias, organisations tend to have their ‘frequent flyers’ if this is the case it may be worthwhile considering outsourcing to an expert.

Workplace Investigations Conflict of Interest – Categories of conflict

I have categorised these conflicts in to 3 types;

Red – Definite conflicts, you should not conduct the investigation

Blue – Possible conflicts, if you believe that you can effectively manage any possible conflict and quarantine any personal views you may have on the subject then go ahead,  if not you should not conduct the investigation

Green – It’s your call, you should be able to conduct the investigation, so long as you can be seen to manage any potential or perceived conflict.

It is important to remember investigation outcomes often have aggrieved parties. If the allegations are substantiated the respondent may be aggrieved. If the allegations are not substantiated the complainant may be aggrieved.

It is important not to give an aggrieved party the opportunity to attack your credibility, professionalism and your impartiality.

If in doubt do not conduct the investigation and consider outsourcing.

Some examples of conflicts of interest that an investigator may face;

• Having a personal relationship with complainant or respondent
• Having any other connection with any of the parties that could affect the investigation
• Reporting to any of the parties, directly or indirectly
• Having any of the parties reporting to you, directly or indirectly
• Being the subject of the complaint or involved as a witness
• Pressure from the organisation or any of the parties towards a desired outcome
• Having previously investigated key parties
• Having had previous issues or problems with any of the parties
• Membership of the same club or group (this can depend on the size of the club or group, the bigger the better to avoid a conflict) 
• You hold particular views on anything that could be relevant to the investigation for example;
  • Child pornography/child mistreatment
  • Politics
  • Religion
  • Current affairs or news
  • Working parents

Remember if you can’t put your personal feeling or views aside you should not conduct the investigation.

The red areas might seem like common sense but during investigation reviews I have seen a number of  investigations having been conducted where there are glaring conflict of interest, it doesn’t usually end well.

Workplace Investigations Conflict of Interest – What can/should you do if there is or your suspect that there could be a conflict of interest (especially a red one)

Responding to conflicts when they occur is important. These are some of the ways a conflict can be addressed:

1. Disclose the conflict (potential, actual or perceived)
2. Decide whether or not you should remove yourself from the investigation, the categories above may assist in that decision
3. Stand firm on your decision to withdraw from the investigation if you feel that the conflict is too great
4. Draft your report detailing evidence only and allow someone else to analysis the evidence and make the findings based on the evidence you have gathered
5. If you are going to conduct the evidence analysis and make findings, have your investigation and the report peer reviewed
6. Distance yourself from the final decision making process

How can I show that there was no conflict of interest

Simple (well that’s easy for me to say);

• Conduct your investigation in a timely and professional manner
• Conduct a thorough complaint analysis followed by careful interview planning
• Conduct your interviews in a professional manner using the PEACE model (see this article for more details)
• Base your evidence analysis, findings and final report on evidence and evidence only
• Get training in best practice workplace investigation processes (for more details click here)

Advantages of outsourcing

• Far less chance of a conflict of interest.  It can happen at times I have turned down investigations as I perceived that there may be a conflict of interest, that usually comes in the form of me knowing or having had worked with or associated with one of the parties.
• A professional investigator has no ‘stake’ in the matter.
• I provide my findings on the evidence and evidence I am not influenced by any desired outcome of the organisation or any of the parties
• I have the time and resources to conduct the investigation that an internal HR department may not have.
• I have the skill, knowledge, experience and qualifications that an internal HR department may not have.
• I have a tried a trusted process that I follow in every investigation

How can AWPTI assist

You can outsource the investigation to me (details here)

I can train you in best practice workplace investigation processes (details here)

If you would like more information please conact me enquiries@awpti.com.au or on 0409 078322