Workplace Discrimination – What’s the next step?

Dominic Cookman

10 May 2021

Topics

  • Business Law
  • Discrimination
  • Employment Law

We have previously talked about implementing organisational policies addressed towards discrimination.

But what do you do when allegations of discrimination are made? How should they be investigated, and by whom? As recent events have shown, even the most prominent organisations grapple with how to investigate and resolve these issues fairly, properly and in a timely manner.

The generalised advice outlined below is designed to help you decide how to conduct such investigations.

Consider engaging an outsider to conduct the investigation

It is self-evident that any investigation should be conducted impartially and without bias, but this is often easier said than done.

Moreover, internal investigations, even when carried out with the best of intentions, can be contaminated – or perceived to be contaminated − in several ways. These include conflicting loyalties to organisational hierarchies, assumed knowledge about processes of the business which may or may not be accurate, and perceptions of bias or partiality.

The first step in an investigation is to appoint an investigator and decision-maker(s). Neither of them should have been involved in or related to the alleged conduct in any way.

Relevant documentation and correspondence should be reviewed before any witnesses are interviewed

It can be tempting to immediately jump to interviewing the main people involved in a complaint to resolve the matter as quickly and efficiently as possible. While this is understandable, it is important that the investigator has familiarised themselves as far as possible with all the relevant background material. This will save time, as well as ensuring that the interviews can be conducted as productively as possible.

Remember that each allegation should be put to the person who is the subject of the complaint

All subjects of discrimination complaints are entitled to what is known as ‘procedural fairness’. Essentially this means that a person is entitled to have each allegation about their behaviour put to them. They are then allowed to provide a response to the allegation(s), including the opportunity to collect and present any relevant evidence in reply.

The initial letter to the employee who is the subject of the complaint should clearly outline each of the factual allegations and explain the potential consequence if each allegation is confirmed. Moreover, the complainant and the subject should of course be interviewed separately so they can give their own version of events.

The final report is crucial to the whole process

The investigator should prepare an investigation report which summarises the evidence collated, presents the facts and makes recommendations to the decision maker(s). A copy of the report should be provided to the employee who is the subject of the complaint before a decision is made. This allows the employee the chance to respond prior to a final decision being made.

Remember that the truth of the matter may not be ‘binary’

Sometimes, the investigation won’t be able to establish that one person is telling the complete truth while another is not. As often as not, an investigator may have to deal with differing perceptions of essentially the same incident or incidents. It may well be that an investigation establishes that discrimination occurred, but without any malicious intent on the part of the subject of the complaint, or the organisation. An effective investigator must be aware of such nuances. Every investigation is different, and there is no ‘one size fits all’ approach.

How can we help?

Snedden Hall & Gallop is an experienced and trusted leader in both employment law, as well as discrimination law.

Should you have any questions regarding the issues raised in this article, as an employer or an employee, please do not hesitate to contact our Employment Law team on 02 6285 8000 or by email.