The Importance of Investigation Peer Review: How a Second Set of Eyes May Counter Bias and Reduce Procedural Challenge

A well-run workplace investigation should be able to withstand scrutiny.

That sounds straightforward, but in practice the vulnerability is often not the investigator’s capability. It is the gap between the evidence gathered, the reasoning applied and the findings ultimately made.

That is where investigation peer review adds value, providing senior technical oversight while helping preserve the integrity of the investigation process.

At iHR Australia, we more accurately describe this as technical review. It is generally undertaken post-investigation by a more senior investigator with the experience and technical capability to independently test the investigation process, evidentiary reasoning and findings before the report is finalised.

In complex matters, technical review may also be introduced earlier, particularly around the particularisation of allegations or where additional project direction is warranted.

The purpose is not to re-investigate the matter.

It is to test whether the investigation that has been conducted is technically sound and whether the findings can be properly traced back to the evidence.

The point of review is to retrace the investigation

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

The reviewer should be able to retrace the investigator’s steps from the particularised allegation through to the evidence, findings of fact and, where relevant, findings of breach.

Investigators inevitably become close to the matters they are examining. They have conducted the interviews, reviewed the documents, weighed competing accounts and developed an increasingly detailed understanding of the case.

That familiarity is necessary, but it can also 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 in the report 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. In her experience, one area where an investigation can become vulnerable is where the investigator moves too quickly from the evidence to the conclusion without sufficiently stepping out the reasoning.

That is precisely the sort of issue a fresh technical review should identify.

A good reviewer looks for where the process can be challenged

Technical review is not simply an assessment of whether the reviewer agrees with the finding.

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

That includes asking:

• Has the allegation been sufficiently particularised?
• Has relevant evidence been identified and considered?
• Have the appropriate witnesses been interviewed?
• Were questions framed in a way that avoided unnecessarily leading the witness?
• Has contradictory evidence been properly dealt with?
• Is there a clear connection between the evidence and each finding?
• Is there anything in the process or language of the report that could create actual or perceived bias?
• Where a breach finding is made, has the conduct been properly tested against the relevant policy, code, procedure or other instrument?

These are not theoretical considerations. They are often the areas a respondent, complainant, legal adviser or external decision-maker will scrutinise if the investigation is later challenged.

The reviewer should be looking for procedural and technical deficiencies before somebody else does.

That is particularly important where the findings may support disciplinary action or other significant employment decisions.

Bias is not always obvious

The value of technical review also lies in introducing distance.

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

The more common risk is subtler.

An investigator may form an early view and then, without intending to, place greater weight on evidence that supports it. They may under-explore evidence that does not fit the emerging narrative. They may use language in the report that appears more definitive than the evidence permits.

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

This is particularly relevant to perceived bias.

Even where an investigator is satisfied that they have remained impartial, an investigation can still be undermined if the report or process gives a reasonable basis for one of the parties to question that impartiality.

Technical review provides another layer of independence and another opportunity to remove avoidable weaknesses before the report is finalised.

Findings of breach require a separate level of scrutiny

One area that warrants particular attention is the distinction between a finding of fact and a finding of breach.

Establishing that particular conduct occurred is one task.

Determining that the conduct breached a policy, code, contractual obligation or other relevant instrument is another.

A technical reviewer should test that second step independently.

Has the relevant provision been identified correctly? Does the conduct established by the evidence actually satisfy the elements of the alleged breach? Has the investigator gone further than the evidence reasonably allows?

This becomes even more important where serious allegations are involved and the consequences of the finding may be significant.

The stronger the finding, the more important it is that the evidentiary and analytical steps supporting it are visible and defensible.

Technical review should not be a rubber stamp

A genuine review requires the reviewer to read the investigation from start to finish and test the work, not simply approve it.

Effective review means retracing the investigation, testing the evidence against the findings, identifying procedural vulnerabilities and following the matter from allegation through to conclusion.

It is not a proofreading exercise and it should not be reduced to formatting, wording or stylistic changes.

Importantly, the reviewer must be prepared to challenge the investigator.

If the evidence does not support the finding, that needs to be raised.

If a further witness should have been interviewed, that needs to be considered.

If the reasoning is incomplete, it needs to be strengthened before the report is finalised.

That does not undermine the investigator. It strengthens the investigation.

The question HR leaders should be asking

Technical review should not be viewed as a response to poor investigative capability.

Experienced investigators benefit from it because complex investigations involve judgement, and professional judgement benefits from scrutiny.

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

Do we have an experienced investigator?

It should extend to:

What quality assurance and technical review will be applied before we rely on the findings?

In complex, sensitive or high-risk workplace investigations, that additional layer of scrutiny can provide important protection for the investigator, the employer and the integrity of the process. It can help identify evidentiary gaps, procedural weaknesses and potential areas of challenge before the findings are relied upon.

iHR Australia provides independent technical review of internally conducted workplace investigations, testing the evidence, procedural fairness, findings and reasoning to give organisations greater confidence that the process can withstand scrutiny.

If you are managing a workplace investigation and would value an independent technical review before finalising the findings, speak with iHR Australia about how we can support your team.