Bringing over 15 years of experience in Human Resources, Employment Relations, Industrial Relations, and Talent Acquisition across both the public and private sectors in New Zealand, Jordana Leerson has led complex employment matters and advised on a wide range of issues including personal grievances, restructurings, disciplinary and performance processes, workplace investigations, privacy, and collective bargaining.
The Risks of Bias in Employment Investigations
Employment investigations sit at the heart of workplace fairness. Whether an employer is addressing allegations of misconduct, bullying, or other workplace concerns, the integrity of the investigation process is critical.
One of the most common, and often overlooked, risks is bias. Bias can affect how evidence is gathered, how witnesses are assessed, and how conclusions are reached.
What Is Bias in an Employment Investigation?
Bias in an employment investigation occurs when an investigator or decision-maker is influenced by assumptions, preferences, or preconceived views that affect their ability to assess the evidence fairly, objectively, and with an open mind.
Bias is rarely explicit. More often, it appears through pre-determination, selective evidence assessment, uneven treatment of witnesses, or flaws in the investigation process. Any of these issues can undermine an otherwise defensible outcome.
What Does Bias Look Like in Practice?
In employment investigations, bias commonly arises in the following ways:
Pre-determination of outcome
Pre-determination occurs when an investigator or decision-maker forms a view about the outcome before all relevant evidence has been gathered and considered. Even where concerns appear serious, conclusions should not be reached until the investigation process is complete and the employee’s response has been properly considered.
Selective reliance on evidence
This occurs when evidence supporting a preferred conclusion is given greater weight, while contradictory evidence is overlooked, discounted, or not properly tested.
Uneven credibility assessments
Bias can arise when the credibility of witnesses is assessed inconsistently. For example, one person’s account may be accepted without scrutiny while another person’s account is rejected without a clear and objective basis.
Role conflicts between investigator and decision-maker
A risk may arise when the same person is responsible for both investigating the allegations and making the final decision. In some circumstances, this can make it more difficult for the decision-maker to remain open to alternative explanations or challenges to the investigation findings.
Organisational pressure or loyalty bias
Investigators and decision-makers may be influenced, consciously or unconsciously, by workplace relationships, business pressures, reputational concerns, or loyalty to colleagues or the organisation.
These issues often emerge subtly, but they can become highly visible if the process is later scrutinised by the Employment Relations Authority or Employment Court.
What Does New Zealand Law Require for a Fair Investigation?
Under s103A of the Employment Relations Act 2000, the question is whether the employer’s actions, and how the employer acted, were what a fair and reasonable employer could have done in all the circumstances.
In the context of an employment investigation, this generally requires an employer to:
- Conduct a genuine and open-minded investigation.
- Raise the concerns with the employee clearly and provide access to relevant information.
- Give the employee a reasonable opportunity to respond.
- Genuinely consider the employee’s explanation and any other relevant evidence before reaching a decision.
Bias undermines an employer’s ability to meet these requirements and may result in an otherwise supportable decision being found unjustified.
How Have New Zealand Courts and the ERA Approached Investigation Bias?
New Zealand employment decisions repeatedly emphasise the importance of an open mind, balanced evidence assessment, meaningful consultation, and a fair opportunity to respond.
1. Pre-determination and process defects
In Kyle Spencer v Modern Transport Engineers Ltd [2026] NZERA 60, the Authority found the dismissal unjustified despite the employer having potentially valid concerns about misconduct. The process included an early stand-down, internal discussions that were not disclosed to the employee, and indications that a view had been formed before the employee had been fully heard.
The practical point is that genuine concerns about misconduct do not excuse a closed or procedurally flawed process. The employer must remain open to the employee’s explanation until the investigation and decision-making process is complete.
2. Failure to conduct a fair and balanced investigation
In A Ltd v H [2016] NZCA 419, the Court of Appeal reinforced the importance of properly investigating allegations, providing the employee with relevant information, and giving the employee a meaningful opportunity to respond before a decision is made.
A failure to take these steps may indicate that the employer did not approach the matter with an open mind. It also creates a risk that the decision was based on incomplete or untested information.
3. Neutral and open-minded decision-making
Employment cases also demonstrate that the neutrality of the decision-maker matters. A lack of proper consultation, limited engagement with the employee’s response, or evidence of a pre-formed view may contribute to a finding that the employer’s process was unfair.
The practical lesson is that the decision-maker must do more than receive the employee’s response. They must properly engage with it and be willing to reconsider their initial view.
4. Fairness is contextual
A fair process must reflect the circumstances of the workplace, the nature of the allegations, any relevant policies or agreed processes, and the needs of the people involved. Where tikanga-based or culturally appropriate processes have been agreed or are relevant, failing to engage with those expectations may undermine the fairness of the investigation.
This means employers should not rely on a rigid, one-size-fits-all process. The process must be fair and reasonable in the particular circumstances.
5. Inadequate testing of evidence
Recent employment decisions continue to show that an inadequate investigation, a failure to test important evidence, or an unbalanced assessment of competing accounts can result in findings of unjustified dismissal or unjustified disadvantage, even where the employer had genuine concerns.
Employers should identify evidence that both supports and challenges the allegations, test inconsistencies, and explain why particular evidence has been accepted or rejected.
Legal Takeaway
A substantively supportable outcome will not cure a procedurally biased process.
New Zealand courts and the Employment Relations Authority consistently emphasise that fairness is assessed not only by the outcome reached, but also by the process used to reach it. Employers who approach an investigation with a closed mind, fail to test evidence fairly, or allow irrelevant considerations to influence the decision expose themselves to significant legal risk.
How Can Employers Reduce the Risk of Investigation Bias?
Employers and workplace investigators can reduce the risk of bias by taking the following steps:
Maintain independence.
Consider using an external investigator where there is a significant conflict, a high level of organisational involvement, or a reasonable concern about internal impartiality.
Separate roles where appropriate.
Where practicable, use different people to investigate the allegations and make the final decision. If one person performs both roles, they should take particular care to remain open-minded and independently assess the employee’s response.
Follow a structured process.
Set out the allegations clearly, disclose relevant information, provide a genuine opportunity to respond, and avoid reaching conclusions until the evidence and response have been considered.
Test evidence objectively.
Look for evidence that both supports and challenges the allegations. Consider alternative explanations and apply the same level of scrutiny to materially similar evidence.
Document the reasoning.
Keep a clear record of the evidence considered, the key factual findings, the reasons for accepting or rejecting competing accounts, and how the employee’s response affected the analysis.
Conduct an active bias check.
Before finalising the investigation or decision, ask:
- Have I already formed a view?
- Have I genuinely considered the employee’s explanation?
- Have I tested evidence that supports and challenges the allegations?
- Have I assessed witnesses and evidence consistently?
- Could any relationship, organisational pressure, or reputational concern be influencing the process?
- Would the process and reasoning withstand scrutiny by the Employment Relations Authority or Employment Court?
Conclusion
Bias is rarely intentional, but its consequences can be significant. Employers must approach investigations with an open mind, assess evidence objectively, and follow a process that gives the employee a genuine opportunity to respond.
Ultimately, a fair investigation is not simply about reaching the right outcome. It is about demonstrating that the outcome was reached through a process that was impartial, balanced, and reasonable in all the circumstances.