Avoiding Scope Creep: Writing a Clear and Defensible Mandate

Workplace investigations can easily drift beyond their intended purpose—a phenomenon known as scope creep. When this happens, investigators may expand issues, timeframes, evidence collection, or witness lists without a defensible reason. The result? Higher costs, delays, and potential challenges to fairness and impartiality.

The best safeguard against scope creep is a clear, defensible mandate: a framework that anchors the investigation to policy or legislation and includes a transparent amendment process. This guide outlines how to build one step by step.

Why Scope Creep Matters

Scope creep drives up costs and delays, creates fairness risks by giving the appearance of bias, and weakens defensibility if challenged. A well‑crafted mandate keeps investigations focused, fair, and credible.

Key Terms

• Mandate (umbrella term): Defines and controls the investigation’s scope from intake to final report.
• TOR mandate section (reader‑facing): A concise paragraph in the Terms of Reference (or equivalent document) summarizing allegations, parties, policies/legislation, and timeframe.
• Operational mandate (investigator’s working plan): Internal scope notes used to guide planning and decision‑making. Not shared verbatim with parties.
• Report mandate section (reader‑facing): Restates the TOR mandate and documents any amendments or scope decisions (e.g., declined allegations, evidence limits).

Step 1 – Apply the Threshold Test

Ask: If the allegations were proven true, would they breach a specific policy, law, contract, or collective agreement?

How to apply:

1. Identify the relevant source of obligation (e.g., Respectful Workplace Policy, OHS legislation, Human Rights Act, or a collective agreement).
2. Break down the elements that must be met (e.g., definition of harassment, discrimination, or violence).
3. Map the allegations against those elements.
4. Decide the next step:
   • Proceed if the allegations plausibly engage a rule.
   • Clarify or formalize if allegations are too vague.
   • Redirect (e.g., coaching, mediation) if—even if true—they would not breach a rule.
5. Record the decision (date, decision‑maker, rationale, and policy/legal anchors).

Shortcut: “If true, does this break a rule?” If not, don’t investigate—redirect and document.

Step 2 – Draft the TOR Mandate Section

The TOR mandate section is a short, clear statement that sets the boundaries of the investigation. For external investigators, the TOR is a formal document outlining mutual obligations; for internal investigators, the equivalent may be an internal memo, mandate email, or other communication that defines scope. It should answer: What is being investigated, by whom, under what rules, and within what allegation timeframe (e.g., January 2024 to June 2024)?

Elements to include:

• Allegations & Policy Anchors: List allegations and the policies/legislation engaged.
• Parties & Parameters: Identify complainant, respondent, timeframe, and locations.
• Investigator’s Role & Authority: Clarify the scope of fact‑finding, analysis, or recommendations.
• Deliverables & Audience (if required):g., full report to client, summary for parties.

Tip: Keep it concise—usually one paragraph.

Step 3 – Define the Operational Mandate (Investigator’s Working Plan)

The operational mandate guides the investigator’s day‑to‑day work. It is internal but should align with the TOR. Key elements include:

• Out‑of‑Scope Clarifications: Document exclusions internally. Summarize in the final report only if relevant.
• Evidence Boundaries: Collect only what directly relates to the allegations. Avoid fishing expeditions.
• Witness Boundaries: Define who may be interviewed (internal vs. external witnesses, limits on attempts to contact).
• Confidentiality & Communication: Protect confidentiality by limiting disclosures to those with a need to know, while also planning regular updates to the client and ensuring both parties have equal opportunity to respond.
• Timelines & Milestones: Set target dates and anticipate potential delays (e.g., availability, document production). Where possible, tie these timelines back to requirements in legislation, policies, or collective agreements.
• Amendment Process: Specify how scope changes will be approved—through an updated TOR or written client instructions. Record and reference all amendments in the final report.

Step 4 – Standard of Proof and Its Link to Scope

While the standard of proof is a fundamental element of any workplace investigation, it also ties back to scope. Using the balance of probabilities as your North Star helps ensure you only gather and weigh the evidence necessary to decide whether it is more likely than not that each allegation occurred. This prevents unnecessary fact‑finding, ensures no more work is done than needed to meet the standard.

Workplace investigation findings are made on the balance of probabilities: whether it is more likely than notthat the alleged conduct occurred. Always:

• Apply this standard consistently.
• Explain how credibility was assessed.
• Avoid relying on unreliable indicators (e.g., body language alone, nervous gestures, or speaking hesitations).

Conclusion

Scope creep can undermine the integrity of an investigation—but it is avoidable. By setting clear rules at the outset, defining a precise mandate, and applying the standard of proof fairly, investigations remain focused, fair, and defensible.