The evidence gathering task in workplace investigations, particularly in relation to claims of harassment, is an intriguing challenge from a neuroscience perspective.

The benchmark for assessing whether harassment did or did not occur, on the balance of probabilities, includes two options:

• that the alleged harasser intended to harass; and
• that the alleged harasser's actions had the effect of harassing.

The investigator is expected to collect and analyse the evidence of what happened on an entirely objective basis and present their findings accordingly. But it is not as simple as it seems.

Neuroscience traps in evidence evaluation

From a neuroscience perspective, there are many traps to consider and avoid before a genuinely balanced evaluation can be offered.

The obvious starting point is the recording of observed behaviours from witness evidence, documents and other sources, as this is visible and further evidence can be sought to corroborate or refute it.

More difficult is the interpretation of intentions, which are invisible, subjective and open to many interpretations by all parties. From a neuroscience perspective, there can be no objective evidence of intention — everyone forms a subjective view. So what do we do?

The role of the investigator

This is where the investigator earns their corn. Complainants and Respondents will inevitably offer their own narratives, but can they be believed? Are they intentionally misrepresenting the experience, or are they unaware of and insensitive to the impact of their behaviour? The difference is significant.

After all, in a Crown Court it is the difference between manslaughter and murder. Although the test for workplace investigations is different, the principles still apply.

We all know that we offer trusted friends much more latitude in the way they communicate with us compared to a stranger. Friends may 'take the mickey', but it is dangerous ground for strangers. When evaluating the nature and seriousness of the claimed offence, this is critical. Did the offence arise through misunderstanding, or was it intentional — perhaps even part of a broader campaign of harassment?

So, the investigator has to tread very carefully, using all their senses to listen to and evaluate critical stories from all sides. This is challenging enough, but it does not end there. They also need to be very aware of their own biases — and we all have them.

The impact of unconscious bias

We learn biases at an unconscious level from a very early age, when we are implicitly or explicitly encouraged to pay attention to some things more than others. This can result in a biased interpretation of the narratives on offer.

So, investigators need not only to report on behaviours but also to provide a balanced interpretation of intentions.

Tricky stuff!

Want to know more?

For more information on this subject and workplace investigations more generally, please contact us at contact@impactlawyers.co.uk.