The investigation into alleged wrongdoing of a senior or high-profile figure in a business imposes significant pressure on the managers tasked with carrying out an investigation.
They may find themselves conflicted by personal ties of loyalty or the subject of pressure from allies of the individual concerned.
Read more: Handling allegations of criminal behaviour in the workplace
It is important when issues of this kind blow up to try and work out what the worst-case scenario could be and get ahead of the curve. If the issues have the potential to cause significant adverse publicity and reputational harm to the organisation, it is better to bite the bullet early and appoint an external investigator.
To do otherwise, runs the risk of an inadequate internal investigation, which fails to address difficult cultural issues, followed by an external investigation to attempt to remedy the position. This duplicates time and costs with damages staff morale, leaving the organisation vulnerable to reputational injury.
The subsequent external investigation will not then be confined to the allegations of wrongdoing but will also have to address the cultural failings in the first investigation, thereby increasing its cost and scope.
Getting it right from the start
At the outset it is important for the relevant decision-makers to determine two things. First, to establish the purpose of the investigation. This will determine the terms of reference (TOR).
If the investigation is triggered to establish the facts as a basis for disciplinary action, the TOR will differ when the aim of the report is to investigate a toxic corporate culture or if it is going to be sent as evidence to a regulator.
The next important consideration is who, internally, is going to oversee the investigation. This is relevant for legal professional privilege (LPP).
On the current law, only communications between those authorised to seek and receive legal advice will attract LPP. Not every employee of the company who has contact with external lawyers during the investigation will be doing so for the purposes of giving or receiving legal advice.
Some will simply be providing information. Best practice is therefore to have a small group of senior employees (the client group) who will provide and receive legal advice.
Don’t forget legal privilege
In a typical workplace investigation, any legal advice as to the setting up of the investigation will attract LPP. However, the instruction of an external investigator – even if that is a lawyer rather than a HR consultant – will not attract LLP.
In the instance where the primary purpose of an investigation is to provide legal advice or to position the client in relation to potential litigation, then communications with a legally qualified investigator could be privileged.
If it is the case, then every communication with the investigator should be kept and marked as privileged. This, however, is not guarantee that a claim of LPP will be upheld, but it could help in making the case.
Finally, it is worth remembering that in the usual case the investigation report will not be privileged, even if it is produced by an external non-lawyer and sent to a lawyer to comment on.
There are a range of different factors to take into consideration when carrying out an internal investigation. It is crucial to establish a focused investigation, with watertight TOR while simultaneously having an understanding of whether communications attract LLP or not.
A strong infrastructure and investigation toolkit should mitigate mistakes and encourage a smooth and successful investigation.
Jeffrey Jupp is barrister at 7BR
