Working from home during the COVID-19 pandemic has added another layer into investigations into employee misconduct.

It is clear that the COVID-19 crisis has changed the way we work.

Even in more normal times, investigations into allegations of employee misconduct can be fraught for all parties. Despite the inherent challenges of conducting workplace investigations, they are now a ubiquitous tool used by Australian firms to respond to allegations of employee wrongdoing.

So, a key question arises in this transformed landscape: how has the COVID-19 crisis impacted on workplace investigations?

The issue highlights three key legal and practical impacts:

• the creation of working conditions that make it harder for firms to detect inappropriate behaviours such as harassment;
• the tendency for firms to prioritise compliance over responsive action when complaints of wrongdoing are made; and
• impediments to efficient investigations when they are conducted remotely.

Remote from the problem?

Prior to the pandemic, employers already faced significant challenges in monitoring employee conduct and determining whether conduct outside of hours formed a sufficient link with an employee’s employment.

For example, the recent ground-breaking Respect@Work report (following the national inquiry into sexual harassment at work conducted by the Australian Human Rights Commission) set out detailed comments regarding high rates of technology-facilitated sexual and sex-based harassment at work.

Employers struggled to monitor employee conduct across modes of digital communication (from SMS to social media to file sharing) prior to COVID-19. For example, the limits of the workplace were already challenged by employees’ growing use of personally procured technology to communicate with colleagues or about work.

Changes to work, necessitated by the COVID-19 crisis, have accelerated the establishment of working from home practices augmented by digital technology.

While these conditions might mean that employees who are directed to work from home by their employers face a decreased risk of physical harassment, reliance on virtual communication can produce new manifestations of unacceptable behaviours in an online environment.

These include the improper use of communication platforms and the fallout of ‘Zoom fatigue’ that exacerbate (already) permeable boundaries between employees’ working and private lives (such as the practices like ‘virtual drinks’ being held in employees’ homes).

These working arrangements might also mean that many more unobserved interactions between employees are taking place and there is a reduced supervisory presence.

An existing challenge in addressing inappropriate behaviour at work is having employees speak up about what they have seen or heard (as elucidated by the #MeToo movement).

Remote work arrangements make employers even more reliant on affected employees coming forward with complaints in order to detect potential misconduct.

It is vital that employers invest time in promoting a workplace culture (for example, via training, targeted communications, policies and procedures) that reinforces expectations regarding employee behaviours, to minimise the chances of unsuitable behaviours occurring.

We also need to encourage employees to come forward if they experience or witness wrongdoing.

Compliance over investigation

At the same time, COVID-19 presents a barrage of pressing operational and financial challenges for firms.

In this context, there might be a tendency for employers to focus on compliance rather than investigate any complaints that are made, particularly when resources are stretched.

My research has found that the framework of laws that intersect with workplace investigations means these processes are inherently complex.

Operational decisions during the pandemic can also produce further legal uncertainty during these processes.

For example, there is a real question regarding whether an employer can interview an employee who has been stood down in accordance with s 524 of the Fair Work Act 2009 (Cth) as part of a workplace investigation.

In the UK, ACAS has released a guideline that confirms that an employee on ‘furlough leave’ can take part in a disciplinary or grievance investigation or hearing.

However, the position in Australia is far less clear.

The unsettled and unclear state of the law in this area means that, in ordinary circumstances, it is difficult for firms and employees to navigate workplace investigations. In a crisis, it might be tempting to simply avoid conducting them.

Focusing on the welfare of workers at a time when there is an emphasis on core business requires proactive effort.

But it is clearly worthwhile (and less costly in the long run for all involved) for employers to prioritise responding to complaints, including, of course, in the interest of all affected employees.

Among other things, courts and tribunals are increasingly critical of firms that fail to promptly respond to complaints of employee wrongdoing by other employees.

Recent decisions have illustrated that informal inquiries into complaints may not be sufficient to comply with commitments in internal policies and procedures or constitute ‘proper’ responses to serious allegations.

New challenges

It is also clear that conducting a workplace investigation remotely presents a range of new challenges for firms and investigators, including because of the evolving legal landscape.

For example, for an employee involved in an investigation into an allegation of misconduct – as a complainant, respondent or witness – the process commonly feels bureaucratic, stressful and alienating.

Conducting a workplace investigation remotely is likely to heighten these feelings including because challenging conversations (such as interviews) might need to be conducted remotely or via written correspondence.

Employers need to invest time and effort into ensuring key communications are conducted in a manner that minimises anticipated impacts on employees’ health and wellbeing, including to ensure that they discharge their obligations to affected employees under work health and safety laws.

Where to from here?

Overall, employers and employees need to understand that conducting workplace investigations is just one operational procedure made much more difficult by the pandemic.

Despite new challenges, timely workplace investigations by suitably trained and experienced investigators can lead to outcomes that address harm and get everyone back to working productively.

Starting with a shared understanding of the difficulties posed by COVID-19 can be the basis for more productive investigation procedures to the benefit of all parties.