By Gillian MacLellan

We have been talking a lot in our world of late about workplace investigations, and in particular investigations into allegations arising in the wake of the Black Lives Matter movement. These are tricky and sensitive matters for employers to investigate at the best of times but the current remote working conditions make them even more complex.

Videocalls and virtual meetings have become part of the daily life of the remote worker.

Technology has enabled us to maintain an element of human interaction as we communicate with our colleagues. Yet there are some workplace interactions over a video conference that employers need to look at differently.

Conducting an internal workplace investigation is one of those situations where nothing beats face-to-face interaction. This is particularly the case when managers are dealing with allegations of harassment, sensitive workplace matters and conflicting evidence of an event.

In all climates, an employer investigating an allegation of racism within its workplace needs to ensure it appoints a suitable investigator. By this I mean an investigator with the necessary skillset and experience to conduct an investigation of this nature. Someone who has skills investigating fraud is not necessarily going to be suited to carry out this type of investigation without the appropriate HR, legal and soft skills training. Does the investigator understand the subtleties of language, racial bias, intersectionality and microaggressions? What questions will they ask to understand a person’s lived experience? It’s a tall order but important to get right.

Another feature we are seeing in relation to concerns raised in the wake of the BLM movement is that they often contain allegations of wider cultural and systemic racism in addition to more discrete alleged incidents involving the complainant. This wider aspect can also be tricky to deal with. The tendency is to focus on the specific allegations being raised, but if managers do this there is a risk that they miss the bigger picture, the cultural undertones of an organisation which may be where the real problem lies. If an employer is serious about investigating allegations of systemic racism, the investigation needs to have a remit broad enough to interview a cross section of employees to understand their subjective experience. An experienced investigator will need to interrogate this information along with other data sources like staff survey results, stats on other complaints raised etc.

Then we add in the complexities of carrying out such an investigation remotely. How an investigator enters a room, talks to the employee and establishes rapport are all very important factors in making the employee feel at ease, and that they are being treated with respect. The social scientists will tell you that non-verbal communication – your body language, posture, hand gestures, facial expressions – are more important than the actual words you say. For an investigator all of these non-verbal cues can also help determine whether someone is credible. Investigators in this territory will inevitably require to weigh up conflicting accounts of events; rarely do we see allegations of racism being admitted to. Investigators need to weigh up the evidence and they need to assess which account (and who) they believe. The standard of proof they need to work to is the “balance of probabilities”. In other words, is it more likely than not that the event happened. Making this assessment can become much harder in a virtual environment.

Within your organisation, have you trained those who would be required to carry out these sorts of investigations? If not, it’s definitely something to add to your to do list; learning on the job is a high-risk strategy for employers and the legal, cultural and PR risks of getting this wrong are significant.

Gillian MacLellan is a partner at international law firm CMS