knowledge 16 July 2018 |

Objective Bias: How Independent Does an Independent Investigator Need to Be?

Introduction

Organisations regularly engage independent external investigators to carry out internal investigations on their behalf. Consultants and investigators working in this area offer a valuable service. Employees, service-users or other stakeholders, who might be reluctant to engage with an internal investigation, may well be reassured by the use of an independent external investigator.

Experienced and reputable consultants working in this area are well versed in fair procedures and operate ‘without fear or favour’. However, organisations should be wary about ‘re-engaging’ the same investigator in multiple investigations over time, particularly where it may be perceived that an individual investigator, or a particular consultancy, has delivered favourable outcomes for an organisation in the past. Such multiple engagements can increase the risk of allegations and findings of objective bias in the investigative process.

Objective bias

In the context of an investigation, objective bias arises where a reasonable person possessed of all of the material facts would have a reasonable apprehension that a participant in the investigation may not be afforded fair treatment by an impartial investigator. Nasheuer concerned an appeal from a decision of the High Court granting the applicant an injunction prohibiting NUIG from continuing with an investigation into complaints of bullying against him.

Facts

Pursuant to a Labour Court recommendation, an investigator was appointed to investigate complaints of bullying against the applicant and others. It so happened that the investigator had, in her capacity as a trade union representative, represented the complainant in an investigation in Labour Court proceedings in 1996. This engagement came about due to happenstance; the investigator was standing in for a colleague who was on sick leave. In addition, the applicant had not been consulted on the scope of the terms of reference for the investigation; an opportunity which had been afforded to the complainant and NUIG. The trial judge held that the reasonable fair-minded observer might, from the length of the list of items to be investigated in the terms of reference, suspect that there had been very significant engagement between the complainant and the investigator and this was to be contrasted with how the applicant had been treated. The trial judge held that the input of the complainant and NUIG in fixing the detailed substance of the terms of reference was sufficient to raise, in the mind if the informed observer, an apprehension of bias. NUIG appealed.

Court of Appeal decision

The Court of Appeal overturned the decision of the High Court and discharged the order staying the investigation. In doing so, the Court of Appeal re-affirmed the established test for considering whether objective bias arises:

“The test to be applied when considering the issue of perceived bias is objective. It is whether a reasonable person, in all the circumstances of the case, would have a reasonable apprehension that there would not be a fair trial from an impartial judge. It is an objective test, it does not involve the apprehension of a judge, or any party; it invokes the reasonable apprehension of a reasonable person, who is possessed of all the relevant facts.” ²

Armed with the material facts, the Court of Appeal was of the view that a reasonable and fair-minded observer could not reasonably apprehend bias on the part of the investigator because she did not afford the applicant the opportunity to make submissions on the terms of reference. The applicant’s apprehension imputed to the informed observer based on a concern that there had been extensive engagement between the complainant and the investigator, was not supported by the evidence.

Comment

Every investigation is different. While the scope of each investigation will turn on the specific facts underlying that investigation, the following insights can be gleaned from the decision in Nasheuer:

Appointing an investigator

When the need for an investigation arises, management should consider requesting a neutral person to select an appropriate investigator. One of the material facts which the Court of Appeal considered in determining whether objective bias arose was the fact that it was the Labour Court which had selected the investigator, without reference to the complainant or NUIG. This does not mean that an organisation cannot object to the nomination of a plainly unsuitable investigator by a neutral party, and request that an alternative be nominated, once that objection is reasonable and well founded. 

Prior relationships between the investigator and other stakeholders involved

In the Court of Appeal’s view, because the investigator did not have a direct or indirect financial interest in the outcome of the complainant’s claim against NUIG in 1996, there is no reason why the reasonable fair-minded objective observer would apprehend that she might be biased in favour of the complainant in the current investigation, not least given the long lapse of time. The inevitable analogy in this context is a judge who, as a barrister prior to his appointment as a judge, provided legal services to a party who is now involved in a case which he is hearing.  In this regard, the Court of Appeal referred to the judgment in Bula Limited & Ors v Tara Mines Limited & Ors (No. 6)³ as follows:

“A prior relationship of legal advisor and client did not generally disqualify the former advisor on becoming a member of court sitting in proceedings to which the former client is a party. There must be additional factors establishing a cogent and rational link between the association and its capacity to influence the decision to be made in the particular case. A long, recent and varied connection may disqualify a judge.⁴ A reasonable apprehension [of bias] would also arise where the judge as counsel had previously given legal services to a party on issues alive in the case to be heard by the court.”

Organisations should bear this reasoning in mind when engaging investigators and ask themselves the following questions:

• How many times have we engaged this particular investigator in the past?
• Could it be argued that the proposed investigator has a ‘financial interest’ in the outcome of the investigation due to repeat engagements by our organisation, whether in connection with investigations or other consultancy work?
• What was the outcome of previous investigations in respect of which this investigator was engaged? If the outcome of these investigations was not necessarily favourable to the organisation’s interests, it would be harder for a reasonable and fair-minded observer with full knowledge of all of the facts to apprehend bias on the part of the investigator.

Stakeholder input into investigation terms of reference

The Court of Appeal noted the following relevant facts with regard to the framing of the terms of reference in Nasheuer:

• The Labour Court recommendation required the investigator to consult with the complainant and NUIG concerning the terms of reference but did not provide for any consultation with the applicants or any of the other respondents to the investigation. This procedure was also in accordance with NUIG’s own Anti-Bullying policy.
• The investigator was to be the sole and final arbiter of the terms of reference under the procedure advised by the Labour Court. The complainant and NUIG had been given the opportunity to comment on the terms of reference which were then decided and finalised by the investigator alone.

When embarking on an investigation grounded on a complaint or grievance, it is common place and good practice to consult with the complainant regarding the terms of reference for the investigation. It is not necessarily essential that the respondents to an investigation be consulted about the terms of reference, particularly where the existing policies of an organisation do not allow for such a right. Clearly, if the policies of an organisation do afford such a right to a respondent to an investigation, they should of course be consulted.

Due to the natural sensitivities of any party involved in an investigation, organisations should be cautious about representing that the terms of reference for an investigation ‘will be agreed’. This is a sure-fire way of securing an impasse to an investigation before it has even begun. Rather, as reflected in the facts of this case, the impartial investigator should be the final arbiter of the terms of reference.

Sensitivities of stakeholders involved in an investigation

In Nasheuer, the Court of Appeal noted that it is understandable that any person faced with an investigation into allegations of bullying made against them is likely to be highly sensitive to any indications, however remote, that the person charged with the conduct of the investigation might be biased in favour of the complainant. It is precisely for this reason that an objective (rather than subjective) test is deployed by the courts when faced with a claim that an investigator has wrongfully refused to stand aside when asked to do so. Organisations need not capitulate to all demands from all stakeholders in order to build a framework for a robust and legally defensible investigation.