Conducting investigations remotely

Question: How should a reasonable investigation into a harassment complaint be carried out if most of a company’s employees are working from home due to the pandemic?

Answer: While the COVID-19 pandemic has made the operation of workplaces more complicated — and even stressful — it has also opened the door to a variety of new technologies that can be used to conduct day-to-day business, which would include investigations. Investigators are now using video-conferencing technologies to run reasonable investigations, allowing employees to stay at home safely.

At the outset of a remote investigation, investigators will need to establish investigation protocols, such as:

• Type of technology: Depending on the complexity of the investigation, an investigator will need to decide between teleconference or videoconference technology. Videoconferences are typically preferable as it allows the investigator to assess the conduct and credibility of participants and to ensure that any confidentiality protocols are being maintained.
• Recordings: The investigator will need to determine if and how it will record the interview and what measures are in place to ensure that interviewees are not surreptitiously recording the investigation.
• Confidentiality: Remotely conducted interviews pose challenges to the creation and preservation of the interview environment that sufficiently protects the confidentiality of the interview. Investigators should advise participants that recording of the investigation and the presence of unauthorized individuals are strictly forbidden. Investigators should advise the participants to refrain from speaking while others are speaking to ensure that no answers or information is missed. In addition, investigators should advise participants to close all other windows on their computers. An investigator may find it useful to ask an individual participant to go to a private room or use headphones to avoid potential confidentiality issues. Most importantly, investigators should watch for these issues carefully during the investigations and address them immediately as they arise. 
• Remote document collection: Although most forms of electronic documents can now be collected remotely, it may be more challenging to collect and review relevant hard-copy documents while travel restrictions and quarantines remain in place. Investigators should document the collection process in detail and consider whether any additional data protection protocols should be implemented. 

In addition to the foregoing, the following practical considerations are also important:

• Making sure the participant is comfortable and familiar with the technology will help eliminate issues with connectivity and reduce delays. In cases where the participant would like a supporter present, it is best to use a technology that will allow the participant to meet privately with their supporter as needed.
• Interviews should be done in an environment that minimizes witness distractions. Interviewees should participate in a private space with no distractions, and investigators should be flexible to accommodate the interviewees’ schedules in light of these challenges. 
• If the interviewee requests and is permitted a support person, the interviewer should ensure the video-conferencing platform permits those parties to virtually meet in a separate “room” without the interviewer present. 

In some ways, the development of video-conferencing software technologies has the potential to streamline the investigation process and save on costs such as travel and accommodations. If investigators take proactive steps to ensure the reliability of these processes, investigations should be able to proceed smoothly and conduct a thorough and impartial investigation.

Tim Mitchell practises management-side labour and employment law at McLennan Ross in Calgary. He can be reached at (403) 303-1791 or [email protected].