The Investigation Dilemma : Fairness, Reasonable Belief and Discrimination

Welcome to the first episode of The Inclusive Edge : The Power Of Diversity

In this episode, we dive into the tricky world of investigating workplace grievances, especially those cases where it’s one person’s word against another and how to use "reasonable belief" when evidence is thin, spot potential conscious or unconscious bias and discrimination, and keep things fair for everyone involved and give practical tips for handling inconclusive outcomes and staying transparent throughout the process.

If your dealing with complex workplace investigations, this episode is for you! Tune in to get the edge on how to manage them with confidence.

Transcript

Andrea Derbyshire (00:11)
Hello and welcome to the new podcast, The Inclusive Edge, The Power of Diversity, a podcast dedicated to helping leaders and HR professionals create fair, diverse, inclusive and dynamic workplaces where everyone can thrive. Each episode, we're going to be exploring practical strategies for tackling workplace equality challenges and building an inclusive culture to help you to unlock the full potential of your team and create a workplace where everyone feels heard.

And our very first episode title is the investigation dilemma, fairness, reasonable belief and unconscious discrimination. I'm Andrea Derbyshire, HR diversity and inclusion consultant. And I'm really excited to of you join me today. For those who don't know me, I've been working in HR equality, diversity and inclusion for over 27 years. My passion is helping organizations to build fair. diverse and inclusive workplaces where everybody feels valued. 

At Andrea Jane Consultancy, I work closely with HR leaders, especially those in the public sector and health, to help them to improve their equality performance and to meet high equality standards. And I know how difficult it can be when you of equality issues that lead to grievances and serious concerns like bullying, harassment and discrimination. At these kind of issues, they can create a really challenging environment and for your staff and for your people team who are wanting to address complaints in a fair and transparent way. So that's exactly what we're going to be discussing today. We're going to dive straight into a topic that many of us of encountered, investigating workplace grievances, especially those situations where it seems to be one person's word against another's and also talking about how to consider where there's potential for bias and discrimination to of played a part in grievances.

We know these cases, they can be really difficult to manage. want to talk through some of the key approaches to help you to navigate these investigations with confidence. To set the scene as HR leaders, I'm sure you've come across many grievances, bullying, harassment and discrimination cases, and you know that it can be really complex to investigate. And often you can find yourself in a situation where it actually comes down to one person's word against another's.

these kind of cases they can be really tough to navigate. How can you decide what really happened when there's no clear-cut evidence? So I know firsthand from my experience and backgrounds in HR that this can be really incredibly frustrating and you want to make a fair decision but sometimes you may find that the evidence just isn't there to support that and it can be a tricky place to be, especially when you're trying to manage the expectations of both parties involved.

and your senior leadership team. There's something that can really help in these situations. It's called the concept of reasonable belief. And that means it's not about proving what happened. It's about looking at the situation from a fair and practical perspective. So I'm going to talk a little bit about what reasonable belief means and how you can use and apply that to workplace investigations. So let's get into that. What is reasonable belief?

Unlike in a court of law where you need to prove that something's happened beyond all reasonable doubt, workplace investigations are about figuring out what's most likely to of happened based on the evidence available. It's about forming a reasonable belief of what occurred rather than needing absolute proof. And this approach can make all the difference. I can remember one investigation that I was involved in recently where both sides were absolutely sure that they were in the right.

and for some of the allegations there was no first-hand eyewitnesses. It just came down to two conflicting witness accounts and it was a challenging case but by focusing on consistency and credibility I managed to piece together what seemed most likely to of happened. wasn't about being 100 % certain but it was about finding what was the most reasonable belief based on the information that had been gathered through the investigation process.

So if you focus on consistency and credibility, that will really help you. And what I mean by that is if you can think about things like does one party's story change significantly during the investigation process or does it not match up with other key evidence that you've gathered, that could influence how credible you find that witnesses account. dates and descriptions of events?

given to you? they consistent across different interviews with them or are they very different? And does the story align with other evidence, accounts and documents? You could find that there's a pattern of behaviour that you're recognising in the evidence and if you put all of these things together and consider them together, it can help you to work out what is most likely to of happened. It's not always easy, I'm not going to lie but

using this approach of reasonable belief and considering consistency and credibility can help you to make the best fair decision. Have you ever been in a situation like this when you've been managing grievances and if so what did you find helpful when the evidence wasn't clear cut? Get in touch and let me know as I'd love to hear your thoughts.

critical aspect of workplace investigations is identifying and understanding whether there's discrimination or bias at play. And it's really especially important if the individual that's raised the grievance holds a particular protected characteristic. For example, they may be from a black and minority ethnic background. They could be disabled, lesbian, gay, bisexual, or any other protected characteristic that's...

covered under the Equality Act 2010. I'm just going to talk through a hypothetical scenario with you now. So if you just take a minute to imagine an employee named Ruby, and Ruby is black, and Ruby's raised a grievance against her manager, because she claims that he regularly dismisses her ideas during team meetings, and he's overly critical, criticises her work much more harshly than he does of her peers. But the manager

when questioned in response says that he treats everybody the same, he treats everybody fairly and holds them to the same standard. As you're investigating the grievance, you notice that Ruby's colleagues, they're all male and white, and they say that their manager praises their input and gives them lots of positive and constructive feedback.

You then go on to look at emails and meeting notes and you find that there is evidence that Ruby's ideas seem to be dismissed without any further discussion, but similar suggestions made by other team members, they're explored and looked at in more depth with the team and with management. And Ruby doesn't seem to get anywhere near as much positive feedback as appears.

So although the manager in this case has said that they don't treat them unfairly and they don't treat them differently and Ruby herself has not even raised that she thinks it could be discrimination, this pattern of behaviour that's coming through does indicate that there's a possibility that the manager has treated Ruby differently than her white male colleagues. And if that is the case, it could be that conscious or unconscious sex and race discrimination.

could be implementing their actions. And as an investigating officer, it's really important for you to identify and recognize these patterns and consider whether the reason behind the manager's actions is related to the individual's protected characteristics. It doesn't mean that you're jumping to conclusions, but it means that you're deep diving and looking further into the situation and you're asking the right questions and considering all of the factors at play.

But it comes down to if there's no other clear, justifiable reason for the difference in treatment, then you should be considering is it down to conscious or unconscious discrimination and making a record of that in the investigatory report and your findings. now I want to move on and talk about those situations when the investigation findings are inconclusive and they don't

uphold or not uphold the grievance because that can also be a challenging situation for you as an investigating officer and for all of the people involved. it could be that you reach a point in the investigation where you've investigated as far as possible, you've spoken to all of the witnesses, you've collected as much information and reviewed as much information as possible but it doesn't clearly support the allegation or

not support the allegation either, so it's inconclusive. So this means that the information you've gathered, you can't confidently make a recommendation on what is most likely to of happened. And when that happens, it's really important that you're open about that and show that you've taken the process seriously and you're not going to make assumptions and that you're transparent because that helps to maintain trust in the investigation process.

even if you can't offer a clear outcome one way or another. So I always tell my clients it's about you being open and honest with everyone involved and explaining why a decision couldn't be reached. So that way both sides can see that while the evidence wasn't enough to fully support or reject the claim, their concerns of been given due consideration and been treated with utmost respect. So just to remember, it is okay if you can't reach a definitive conclusion.

What matters is that you approach the process fairly and you've conducted a thorough and robust investigation.

now before we wrap up, I want to share a little bit about support through challenges like these. As I say, I've seen firsthand in my years of experience how difficult it can be when you're navigating complex grievances and when the evidence is unclear. So I want to be there for you, whether you need advice, a second opinion or just a sounding board when things get tough. So I know how important it is to approach these situations with care and to make sure that everyone feels

heard, valued and respected. So it's not about you doing it alone. If you ever do find yourself in a situation where you're struggling with a tricky grievance and you just need someone to talk through the investigation situation with, please don't hesitate to reach out. I'd love to help. So that's it for today's episode, episode one of The Inclusive Edge. I hope that you found the discussion on investigating grievances helpful.

Remember, it's about approaching each case with fairness, looking out for potential bias and using the evidence available to make the best possible decision that you can, even when the outcome is not straightforward. So if you've enjoyed this episode, make sure to hit subscribe so you don't miss any future discussions on all things human resources, equality, diversity and inclusion, and how to help you to create the inclusive edge and a positive workplace culture.

If you've got any feedback about today's episode or you'd like us to cover another topic going forward or even join me as a guest on the podcast, please get in touch. I'd love to hear from you. Thank you so much for listening to this first episode of The Inclusive Edge, The Power of Diversity. I'm your host, Andrea Derbyshire. I look forward to continuing this journey with you. Until next time, stay focused, stay on The Inclusive Edge.

and keep building a positive workplace culture. Thank you for listening.