Investigations being conducted into workplace disputes have increased recently, possibly partly due to the rise in the number of sexual misconduct in the workplace allegations since the advent of the #MeToo movement.
Planning is key to workplace investigations and, if you are considering carrying out an investigation, ask yourself the following questions at the outset:
Why is the investigation necessary?
Answering this question will help you to accurately establish the aims and objectives of the investigation. Once established, the scope of the investigation and methodology should be set out in the Terms of Reference. This forms the basis of the investigator’s planning and their conduct throughout the investigation and should be referred to throughout the process. Having clarity of purpose ensures transparency for all parties and keeps the investigation on track.
What will be investigated?
Identify the allegations that have been raised or the issues which have come to light. This should assist you in identifying the evidence which needs to be obtained. Are there categories of documents or correspondence which should be searched for or requested? Which individuals should be called to give evidence and what will be the best way of eliciting their evidence (by interview, written statement or a mixture of both)? Is there a potential criminal element to the allegations? If so, individuals may need to be advised of their right to take legal advice before participating. Do the police or a regulator need to be notified?
Who will carry out the investigation?
Other than identifying a senior individual in the organisation with the necessary skills and qualities, it is essential that the investigator is independent, impartial and objective. This means they should not have had any responsibility for the matters under investigation or any involvement in the alleged conduct. Where the allegations are particularly serious or there are significant issues to be decided, it may be appropriate to appoint an external investigator.
How long might the investigation take?
Estimate how long the investigation might take. This sets a hypothetical limit on the process and manages the expectations of the participants. There will inevitably be delays in the process; witnesses may not be available for interview, there may be new evidence which comes to light, documents which need to be translated and specialist expertise to be obtained. Where delays arise, explain them to the participants and provide progress updates. The time needed to conduct a fair and thorough investigation should not be underestimated and neither should the time required to draft the investigation report. Once all the evidence has been gathered, the investigator will need time to analyse it and form their conclusions and potentially make recommendations.
Does legal privilege apply?
Legal advice privilege only applies to confidential communications between a lawyer and client made for the purpose of obtaining legal advice. Litigation privilege only applies to confidential communications between a client and their lawyer, or between either of them and a third party for the dominant purpose of existing, pending, or reasonably anticipated adversarial litigation. If legal advice is being provided in connection with the investigation, privilege may apply but ensure it’s maintained by limiting the number of people authorised to obtain confidential legal advice and only circulating privileged material within this group.
How do we ensure fairness to all parties involved?
In many investigations there will be an accused and an accuser. It is crucial that throughout the process that all parties are treated fairly and consistently (eg, if the accuser is being offered the right to be accompanied to an interview, this offer should also be extended to the accused).
Who will see the investigation report?
Consider this question at the beginning of the investigation. An investigator might draft the report in a different manner or employ a different tone if they are aware that a copy of the report will be sent to the accuser and the accused. There are also data protection considerations. The investigator should be transparent to all participants at the outset as to how the data will be used. If it is decided that the parties should not receive a copy of the full report, consider whether there is a compromise solution, such as allowing a redacted version to be seen.
How can we support those involved in the investigation?
Participating in a workplace investigation can be a stressful experience. Consider how to support the mental health of all parties involved. It is not only the accused and the accuser who are likely to find the experience stressful, but also the witnesses and the investigator. Acknowledge at the beginning of the process that this may be a difficult time for people and signpost the support which will be available, eg counselling services, mental health first-aiders or an employee assistance programme. Being transparent throughout the process (regarding progress, any delays, next steps, etc.) will also help reduce anxiety. Once the investigation outcome is ready to be disclosed, be mindful of the impact it may have on certain individuals and remind them of the support available.
Richard Fox is a partner and Clodagh Hogan an associate in Kingsley Napley’s employment team and cross-practice investigations group