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Workplace Investigations in a Time of Covid

What we know so far

On the 12 March 2020, the Government, led by then Taoiseach Leo Varadkar, shut all schools, colleges, childcare facilities and cultural institutions. We were later told that all who could work at home, should work at home. Like most organisations, we sat, monetarily paralysed by the unprecedented nature of what we were facing. All of our investigations were paused and every email sent suddenly contained a variation of the phrase “I hope you’re well in these difficult times”.

We sat back and watched Leo outline the Government’s guidance and sent all of our employees home with secure devices at varying stages of their life-cycles. We started researching applications like Zoom (is it ZOOM?), Microsoft Teams and Google Hangouts and were wondering where Skype had disappeared to.

Now, up to that point, all investigation meetings, disciplinaries, appeals, etc., had taken place face to face. All of our concerns around data protection and privacy were suddenly amplified by the thought of remote hearings and interviews. How can we ensure they remain private? How can we make a record of the meetings? How can we provide a private space for a party to consult with an advisor or support person during an interview if they are both remote? How do we ensure that we are not being recorded? How can we ensure that people feel they have been properly heard and have received the full panoply of their rights to fair procedures while being interviewed remotely? The list went on.

We were luckier than other companies – we had taken the move to go paperless some years prior to this. All of our information is securely stored in a cloud-based system. This decision was primarily taken for data protection and environmental reasons. Little did we know, it would prove to be invaluable in 2020.

Eventually, much like everyone else, we realised this was not going away and we needed to adapt, and adapt well. We re-enforced our data protection position. We commissioned a report from VM Forensics of VM Group, an IT forensics/Discovery company, on what platforms to use and how to get the most out of each. We trialed various platforms. We are currently upgrading our IT security to a level we could not have believed necessary this time last year.

Almost all of our investigations, mediations, hearings and training are currently online. Here is what we have learned –

  1. These processes cannot wait for the pandemic to end. People are still working together, albeit remotely in many cases. The trials and tribulations of employee relations are ever-present. Waiting only serves to worsen inter-personal issues and muddy the waters in terms of process and procedure. While there was an initial after-shock period when restrictions first came into play, this has passed. Indeed, any delay in conducting investigations may lead to an accusation that the employer failed to actively manage and progress the process. Employers and employees expect HR investigations to continue in the interim. Delay also elongates the period of potential stress experienced by the parties to such processes. Employers and parties are willing to participate like this.

  2. Make sure you are complying with data protection requirements. This may seem like an obvious consideration, but its importance cannot be overstated. Research where data is stored by a platform and whether you need to elect for it to be stored in the EU. Ensure that your video communications software is not retaining data, unless it is part of an intra-organisation package that is secure.

  3. Decide on a platform that works for your needs. We have found ZOOM (the professional version) a particularly useful platform as it provides a “break-out” facility that allows parties and their representatives to consult privately. This may soon be offered by other platforms such as Microsoft Teams. Use your own platform and retain control, rather than relying on one owned by the participant or other party. Our Case Support Officers act as concierges for the meetings.

  4. Develop a remote meeting protocol. This is something that can be provided to the parties ahead of any meeting to ensure they know what is going to happen. It very simply outlines the stages in the process now that it is online. It can inform a participant, inter alia, not to have unidentified people with them in the room during the course of the interview and to make support documents available in an electronic format in advance of the meeting if possible. This will make life easier for all participants and will reduce unnecessary stress. The Protocol may also include how a person can access the meeting.

  5. Make sure to keep as many of the interview formalities as possible. Say good morning. Make an effort to introduce all parties on the video call. Explain the purpose of the meeting. Outline that it is confidential and that no recordings (aside from your own) may be taken. Ensure that the person is comfortable where they are, and if they are not, adjourn until they can be. Ensure that the party can both hear and see you. Be patient with participants encountering WIFI or other IT difficulties.

  6. Generate a record of the interview/meeting in the way that you normally would. Stick to what you normally do where possible, whether that be a written record taken in realtime to an audio recording used for the purposes of generating a record. Where recording the meeting, make sure it is made clear that the audio file is collected for the purpose of generating a written record alone.

  7. Do not hold yourself to an unreasonable standard. You are likely working from home and many parties may be too. You cannot eliminate all evidence of this during the course of a video interview. Do the usual things like finding a quiet private space, where possible. Sit with light facing you so you are clearly visible. Try to have a neutral background, a plain white wall or set of bookshelves. Consider what might be on the bookshelves, mind! Do not fret if the postman walks past outside. On one occasion this was conflated into an attempt at intimidation! That is an unreasonable stance and will be apparent as such.

  8. If taking a break, ensure that your camera and microphone are temporarily switched off. This goes for the parties also. You can mute your device; however, it may be best to suggest they mute themselves prior to taking the break.

  9. Mediations Mediations are perhaps more amenable to being successfully conducted remotely, both those resolving interpersonal disputes and those ending an employment relationship. The breakout room facility in Zoom has been particularly useful. We wondered if the trust aspect of mediation would be harder to develop while operating remotely, however, we have not found this in practice.

This manner of conducting workplace investigations has opened up an entire world that was previously unavailable to us. It has forced progress. Going forward, we anticipate that we will be using a combination of online and in-person processes, once it is safe to do so.

Workplace investigations can be done online, and they can be done well.

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