by Peter Lowe
Internal workplace investigations turn sour for a variety of reasons, including haste, poor preparation, ineffective documentation, and a lack of investigatory skills. But in my experience, the biggest obstacle to fair and thorough investigations is the bias of the investigator. When an investigator starts out with a preconceived notion of guilt or innocence, he will likely draw up an investigative map that results in his preconceptions being affirmed. Since the world has its eyes turned toward Brazil and the 2014 FIFA World Cup, now is a good time to look back at the case of the “Liverpool 96,” which provides a cautionary tale about investigative bias and the injustices that almost invariably result. 
The ‘real’ football
Ever since coming to the United States 28 years ago, I’ve struggled with the idea that the helmeted and padded behemoths who handle an oval ball are playing “football.” I grew up with the real game, played with a round ball and feet.
During the 1970s and ’80s, football in England was plagued by fan violence—commonly referred to as hooliganism. Football was stained by the ugly image of young shaven-headed males fighting with fists, boots, and sometimes knives. Copious volumes of lager often fueled their violence (hence the term “lager louts”).
Tragedy on the terraces
The dominant team of that era was Liverpool F.C., a team that has always inspired a passionate fan base. In 1988, Liverpool played a crucial cup tie (think playoff) before a packed stadium, with fans segregated based on which team they supported. In those days, the segregated fans stood behind the goals on standing-room terraces. The fans were penned into the terraces by wire fences designed to prevent pitch invasions.
Six minutes into the game, the referee called a halt to play because Liverpool fans were scaling the fence and spilling onto the pitch. The crush of the crowd was pulverizing fans against the metal fences, causing them to suffocate. Within 30 minutes, dozens of corpses were laid out on the pitch. In total, 96 fans died in what became known as the Hillsborough tragedy.
The police, the government, and football authorities all promised inquiries to get to the root of the tragedy and prevent it from ever happening again. No stone was to be left unturned. The authorities were true to their word to the extent that there were multiple lengthy inquiries. Senior judges and law enforcement officials spent countless hours poring over the evidence. Nevertheless, it has become evident more than 25 years later that most of the inquiries were deeply flawed because of the prejudices of the otherwise highly qualified investigators.
A sign of the problem to come was displayed when the police issued a statement hours after the tragedy blaming the unruly behavior of the Liverpool fans for the tragedy. The story was picked up and carried by the media (in particular, the tabloid press). The young fans were both an obvious and an easy target. Soon the focus became the blood alcohol content of the deceased. In horror, the bereaved families saw their children implicated in the tragedy.
It now seems that the investigators, judges, and media were unduly influenced by the reputation of football fans in the 1980s. Their preconceived notion of a young fan as a hooligan allowed them to miss the mark in their inquiries. With one notable exception, the investigations were tainted by the investigators’ failure to keep an open mind. History has now revealed that the cause of the deaths was poor policing and inadequate crowd control. Most critically, the police opened a gate to the terrace, which allowed thousands more fans to pack into an already overcrowded space. The police inquiry was terribly flawed, and police statements were sanitized to tailor the evidence to the authorities’ desired conclusion.
‘You Will Never Walk Alone’
Liverpool’s teams are greeted by their anthem, “You Will Never Walk Alone,” sung full-throatily by every man, woman, and child in the stadium. True to their anthem, the Liverpool faithful would not let the matter rest and supported the families in their quest for justice. After they were rebuffed at every turn, the turning point came at a memorial service held at Liverpool’s famous Anfield Stadium to mark the 20th anniversary of the tragedy.
As the government minister began to speak, the 30,000 people in the crowd broke into chants of “Justice for the 96!” It’s an incredible moment to watch on film, as the voices of the masses are heard. To his credit, the minister vowed to reopen the inquiry. Now, 25 years later, the original verdicts on the 96 deaths have been thrown out, the fans have been exonerated, and a new, painstaking inquiry is likely to reveal the true culprits.
Final score
With hindsight, it’s easy to see how the Liverpool investigations were tainted. However, at the time, I’m sure the judges considered themselves to be fair-minded neutrals. I’ve seen the same phenomenon in the workplace when good, seasoned professionals launch an investigation.
I’m certain most workplace investigators consider themselves to be fair and balanced in their approach. However, because they start the investigation with the story mapped out in their heads, it should be no great surprise when that’s the story the investigation reveals. I’ve reviewed numerous investigations, and one sign of a fair inquiry is when there are twists and turns in the plot and you find yourself ending up in a different place from where you started.
I have no simple prescription for employers, except perhaps a suggestion to be judicious in your selection of investigators. An employee who sees everything in black and white, or someone who makes up his mind and doesn’t readily change it, may not be your best choice. 
For readers with an investigatory role in the workplace, it’s crucial to keep an open mind.
Peter Lowe is a partner with in Lewiston, Maine, serving as lead labor counsel for some of the premier employers in Maine, including L.L. Bean, Inc. In this role, Peter advises clients on personnel practices and employee relations matters. He is the editor of Maine Employment Law Letter. He can be contacted at plowe@brannlaw.com