Independent Workplace Investigations: Why Independence Alone Is Not Enough

Engaging an external investigator can create distance from the people, relationships and internal dynamics surrounding a workplace complaint.

But appointing someone external does not, by itself, guarantee that an investigation will withstand scrutiny.

In practice, investigations tend to become vulnerable in the space between the evidence gathered, the reasoning applied and the findings ultimately made.

That vulnerability becomes particularly important when allegations are serious, evidence is contested, senior employees are involved or the findings may lead to significant employment consequences.

For HR leaders, independence should therefore be considered as more than simply who conducts the investigation. It is about whether the entire process demonstrates impartiality, procedural fairness and a defensible path from allegation to finding.

At iHR Australia, this is why senior technical review forms an important quality safeguard within our independent workplace investigation process. A second experienced investigator can retrace the investigation, test the evidentiary reasoning and identify procedural vulnerabilities before findings are finalised.

The question is not simply:

Was the investigation conducted independently?

It is:

Will the investigation withstand scrutiny if its process or findings are challenged?

When should an organisation appoint an independent workplace investigator?

An independent workplace investigator may be particularly valuable where:

• senior executives, board members or other influential employees are involved
• the internal HR team has an actual or perceived conflict of interest
• allegations concern bullying, harassment, discrimination, misconduct or other sensitive behaviour
• the findings may support significant disciplinary or other employment action
• evidence is likely to be contested or witness credibility will be important
• an internal process may not be perceived as impartial
• the organisation does not have the internal capability or capacity to conduct the investigation.

In these circumstances, external independence can provide important separation between the investigator and the relationships, interests or organisational dynamics surrounding the matter.

Independent investigation or independent technical review?

There is an important distinction between the two.

An independent workplace investigation involves an external investigator conducting the investigation itself, including gathering evidence, interviewing participants and making findings against the allegations.

An independent technical review involves an experienced investigator reviewing an investigation conducted by someone else. The reviewer tests the process, evidence, reasoning and findings, but does not automatically re-investigate the matter.

Both can have an important role, but they address different risks.

Where independence is required from the outset, particularly in complex, sensitive or high-risk matters, an external investigation will generally provide the stronger safeguard.

Where an organisation has appropriately conducted an investigation internally but wants additional assurance before relying on the findings, technical review may be appropriate.

What does a sound independent workplace investigation involve?

A well-run investigation generally begins with a clearly defined scope and terms of reference.

The allegations need to be appropriately particularised. Relevant evidence needs to be identified and collected. Participants and witnesses need to be interviewed, and each party must have a fair opportunity to respond to material relevant to the findings.

The investigator must then assess the evidence and provide findings that are clearly supported by the reasoning set out in the report.

On paper, that process appears straightforward.

In practice, the vulnerability often arises when the evidence gathered, the analysis applied and the findings made do not quite align.

This is where technical review becomes particularly valuable.

At iHR Australia, senior technical review is a key quality safeguard within the way we conduct independent investigations. It is generally undertaken once a draft report has been prepared and before findings are finalised.

The review does not substitute the reviewer’s preferred conclusion for that of the investigator.

Its purpose is to test whether the investigation is procedurally and technically sound and whether each finding can be traced back to the evidence and reasoning applied.

The point of technical review is to retrace the investigation

A meaningful technical review involves considerably more than reading the final report and deciding whether it appears reasonable.

The reviewer should be able to retrace the investigator’s steps from the terms of reference and particularised allegations through to the evidence, findings of fact and any findings of breach.

Investigators inevitably become close to the matters they are examining. They conduct the interviews, review the documents, weigh competing accounts and progressively build a detailed understanding of the case.

That familiarity is necessary, but it can create blind spots.

An investigator may understand why a particular piece of evidence supports a finding because they have been immersed in the material for weeks. The question for the reviewer is whether that reasoning is actually demonstrated and whether another experienced practitioner can follow the same evidentiary path.

Kirsten Hartmann, Director of Workplace Advisory and Compliance at iHR Australia, describes this as testing the linkage between the evidence and the findings.

An investigation can become vulnerable where the investigator moves too quickly from evidence to conclusion without sufficiently setting out how the finding was reached.

A good reviewer looks for where the investigation can be challenged

Technical review is not simply an assessment of whether another investigator agrees with the findings.

The reviewer should actively test where the investigation may be vulnerable.

That includes asking:

• Do the terms of reference clearly define the scope?
• Has each allegation been sufficiently particularised and put fairly to the respondent?
• Has all relevant evidence been identified, preserved and considered?
• Have material witnesses been interviewed, or has a decision not to interview someone been explained?
• Were questions framed to test the evidence without unnecessarily leading witnesses?
• Was each party given a fair opportunity to respond to relevant adverse evidence?
• Has contradictory evidence been properly considered?
• Is there a clear and reasoned connection between the evidence and each finding?
• Could any aspect of the process or report language create actual or perceived bias?
• Where a breach finding is proposed, has the conduct been tested against the relevant policy, code, procedure or other instrument?
• Were the investigator and organisational decision-maker appropriately separated?

These are not theoretical issues.

They are often the very areas a respondent, complainant, legal adviser or external decision-maker will scrutinise if the investigation is later challenged.

The objective is to identify procedural and technical weaknesses before the organisation relies on the findings.

Bias is not always obvious

Bias does not necessarily mean that an investigator has consciously favoured one party or predetermined the outcome.

The risk can be much subtler.

An investigator may form an early view and, without intending to, place greater weight on evidence that supports it. They may not fully test evidence that does not fit the emerging view, or they may use language that is more definitive than the available evidence permits.

A reviewer coming to the matter fresh is often better placed to identify those issues.

This is particularly relevant to perceived bias.

Even where the investigator is confident they have remained impartial, an investigation can still be undermined if there is a reasonable basis for one of the parties to question the fairness or independence of the process.

Technical review introduces another level of scrutiny before the report is finalised.

A technically sound investigation must also manage psychosocial risk

Technical rigour is only one part of a defensible investigation. The way the process is experienced by participants also matters.

Investigations can create or exacerbate psychosocial risks through prolonged uncertainty, repeated retelling of difficult events, unclear communication, isolation or a process participants perceive as unfair.

For that reason, a well-managed investigation should also consider whether the process is timely, transparent, appropriately supportive and responsive to the risks arising throughout the matter.

This can include how confidentiality is explained, whether participants receive appropriate updates, whether support options are available and whether arrangements are needed to manage contact, workloads or other workplace risks during the investigation.

What should HR leaders consider before commissioning an investigation?

The first question is whether the organisation can reasonably conduct the investigation internally or whether the circumstances require external independence from the outset.

Where senior leaders are involved, relationships create potential conflicts, allegations are particularly sensitive or the findings may carry significant consequences, independence should be considered early rather than after concerns about the process arise.

Where an internal investigation is appropriate, a second question should follow:

What independent safeguards will be applied before the organisation relies on the findings?

An independent technical review may be appropriate where:

• a party has raised concerns about actual or perceived bias
• the investigator is closely connected to the people or issues involved
• senior leaders are involved or significant disciplinary action is being considered
• evidence is conflicting or depends heavily on witness accounts
• there are concerns about procedural fairness or the investigation moving beyond its original scope
• HR wants independent assurance before relying on the findings.

Ultimately, experienced investigators benefit from scrutiny because complex investigations involve judgement, and professional judgement should be capable of being tested.

For senior HR leaders, the question should therefore not end with:

Do we have an experienced investigator?

It should extend to:

What safeguards are built into the investigation process to ensure the findings can withstand scrutiny?

Questions HR leaders often ask about independent workplace investigations

When is an external workplace investigator appropriate?

An external investigator is particularly appropriate where allegations are complex or sensitive, senior leaders are involved, internal relationships may affect perceived impartiality, evidence is heavily contested or the organisation does not have suitable internal capability or capacity.

Can an in-house workplace investigation be independently reviewed?

Yes. An independent technical review can test the scope, procedure, evidence, reasoning and findings of an investigation conducted internally. It can identify areas requiring further work before the organisation relies on the findings.

How is independence protected during an investigation?

Independence can be supported by checking for conflicts at the outset, establishing clear terms of reference, separating the investigator from the organisational decision-maker and ensuring findings are based on evidence rather than assumptions or workplace relationships.

Does the investigator decide the disciplinary outcome?

Usually, no. The investigator makes findings within the agreed scope. The organisation’s authorised decision-maker then considers those findings and determines any disciplinary or other employment response. Keeping those roles separate supports impartiality and sound governance.

Independence should be built into the process, not added after the fact

For complex, sensitive or high-risk workplace matters, independence is not simply about appointing someone external.

It is about creating an investigation process that can withstand scrutiny from beginning to end.

At iHR Australia, our independent workplace investigations combine experienced investigators with senior technical oversight where appropriate, providing an additional level of scrutiny around the evidence, reasoning, procedural fairness and ultimate findings.

That gives HR leaders greater confidence that significant decisions are being made on the basis of a process that is independent, thorough and technically robust.

If your organisation is managing a complex, sensitive or high-risk workplace matter, speak with iHR Australia about appointing an independent workplace investigator and establishing the right scope and safeguards from the outset.