Independent Workplace Investigations

Independent workplace investigations have experienced significant growth.

A Board might need to independently investigate serious misconduct complaints about a director/shareholder; sometimes just as matter of good corporate governance, or to help counter potential allegations of unfair prejudice where the director concerned is also a shareholder and is subject to good leaver/bad leaver provisions.

In addition, investigations are usually undertaken when an organisation receives a serious discrimination, bullying, or whistleblowing complaint made by an employee which could result in reputational damage, adverse publicity, and high value litigation.

Key Considerations

• For regulated organisations having complaints dealt with both expeditiously and externally can help prevent a regulator from commencing its own formal investigation.
• Managing an investigation either in-house, or externally, means the business will not be able to claim legal privilege for most aspects of the investigation. Even if it is carried out by in-house lawyers there are limits as to the extent which legal advice privilege can be claimed.
• Organisations need to be mindful that any work carried out by auditors, forensic accountants will generally not be privileged.
• Starting point is to define which of its employees will be “the client” for the purposes of communicating with external lawyers and accessing confidential documents. The group is likely to be restricted to just a few directors and key personnel. By doing so it helps to control the dissemination of advice thereby helping to protect legal advice privilege.
• Instructing private investigators needs to be undertaken with extreme caution. Done without good reason, and without appropriate authorisations may lead organisations to fall foul both of the law and breach the Information Commissioner’s Guidance.
• Consider which employees need to be informed about it. Where the matter is serious and potentially newsworthy, the entire organisation may need to be forewarned.
• Remind affected staff about their duty of confidentiality, and to preserve documents.
• Consider who to interview. Start with junior employees and move up the hierarchy.
• How much information should an interviewee be given in advance of any meeting.
• Regarding the investigation report think about whether to have initial conversations first about potential findings before any final non-privileged document is created.
• Only share report with individuals who are properly regarded as the client. If it needs to be shared with third parties then think about securing a limited waiver of privilege.