What is an impartial investigator?
The role of an impartial investigator is to review the facts professionally, in a fair and unbiased manner. But as well as choosing an impartial investigator, the investigation process itself must also maintain impartiality. When conducting a workplace investigation both of these key elements need to be taken into account to ensure interviewees are treated fairly and the process avoids criticism by any affected parties or employment tribunals.
Maintaining impartiality during an investigation can be challenging, requiring the investigator to keep an open mind, ensuring the complainant and respondent are both treated fairly, without judgement. By only forming conclusions once all the relevant evidence has been obtained, the investigator and all concerned parties can ensure a procedurally fair process has taken place.
Challenges facing an impartial investigator
An impartial investigator is important, especially in small jurisdictions, where particular difficulties are faced when there is a need to investigate significant complaints or concerns against public bodies or other similar large organisations. This is highlighted in the island of Jersey where I was born and have spent the great majority of my working life. Unlike the position in large jurisdictions, politicians, senior officials and others in public life in a small place are likely to know each other well and will also be well known to many others in the community.
With a limited number of sporting and social clubs, service organisations, schools and places of worship it is inevitable too that people from across all sectors of the community from differing professional backgrounds will find themselves socialising together outside work and forming friendships. As a result it can be hard to convince a complainant that an investigation or review carried out internally has been done fairly and impartially as there is often a perception, albeit usually unfounded, that those undertaking the review might know some of the other parties involved and therefore be unable to approach their task in an objective manner.
How to choose an impartial investigator
It is not therefore surprising that the authorities in Jersey have looked outside the island in recent years to find the necessary expertise of an impartial investigator for significant reviews to ensure independence. For example in August 2007 a former director of Devon Social Services was appointed by the Jersey Council of Ministers to undertake an inquiry into issues relating to child protection in Jersey and in 2009 Verita was appointed by the Minister for Health and Social Services to investigate the circumstances surrounding the death of a patient in the day surgery unit at Jersey General Hospital in 2006.
Both investigations produced comprehensive and well-received reports with recommendations for improvement, many of which have subsequently been implemented. But even though both investigations were undertaken by well-respected and totally independent professionals from outside the Island, those conducting them nevertheless had to deal, during their work, with some adverse comments of the kind frequently expressed in small communities about conflicts of interest and a lack of impartiality.
Some were concerned that those conducting the investigations had been appointed by the body which was subject to the investigation. Others were concerned that those conducting the investigations might somehow be influenced in their work because they had been given offices in government departments as a base for their work in Jersey, a concern that was only allayed when both reviews were moved to work out of my office because, as Greffier of the States (Clerk of the States Assembly), I was universally recognised to be totally apolitical and independent of government administration.
An impartial investigation process
In 2012, possibly recognising some of the concerns expressed in relation to earlier investigations, the States Assembly in Jersey agreed that the committee of inquiry that was to be established to investigate allegations of historical abuse against children in care should be comprised entirely of members from outside the island and, equally importantly, selected in a totally independent, impartial manner without any involvement from the Government of Jersey.
As Greffier of the States I was charged with overseeing the selection process and formed an independent selection panel involving the senior legal counsel – Child Protection at the NSPCC and the managing director of Verita. Verita provided all administrative support throughout the selection process and this ensured that the entire process was handled outside Jersey meaning that there could be no accusations that anyone in the political establishment in the Island had been able to influence the selection. The appointment process was acknowledged by all stakeholders in Jersey as being an extremely successful one and was, I believe, a model which overcame the ‘small community’ concerns described above.
Verita provide an interactive training course on how to conduct an investigation for all those who commission investigations, which covers how to select an investigative team.
If you would like to learn more about the importance of an impartial investigator then please book a free consultation or contact Ed Marsden on 020 7494 5670 or [email protected].