With increased scrutiny surrounding workplace investigations in the wake of global movements such as #MeToo, and the increasing trend towards discussion of workplace misconduct online, it has become common to involve external parties to investigate alleged workplace misconduct.
Here are a few tips for businesses to consider at the outset of an investigation.
Should we appoint an external investigator?
That depends. Central to that decision about keeping an investigation in-house or appointing an external investigator will be the nature and seriousness of the accusations, the seniority of individuals involved, the purpose of the investigation and whether the business has the resources and expertise to conduct an investigation internally.
Often, third parties are brought in to investigate situations where high-stakes accusations involving senior individuals are concerned, given the risk of a perception that the ultimate decision will be influenced by the seniority of the individual concerned. More broadly, however, workplace culture investigations, which focus on possible broader cultural failings rather than one specific complaint, are increasingly widespread. These are often carried out by an external investigator who can provide a valuable outsider’s perspective.
Read more: The advantage of an external investigator
Increasingly, lawyers are instructed to undertake investigations into sensitive workplace issues. In many cases, this is simply to leverage the skillset of those who are familiar with how subsequent potential disputes may be fought, and are skilled in sensitive questioning techniques. In other scenarios, lawyers are instructed due to the desire to undertake investigations under legal privilege, so that their findings and accompanying advice are not disclosable in any subsequent litigation.
Should the investigation be done under legal privilege?
Legal privilege protects communications between lawyer and client from disclosure. In other words, it allows a business to withhold evidence (including investigation findings) to third parties, in particular during litigation.
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Not all investigations can, or should, attract legal privilege, however. It applies only where the purpose of the investigation to is take legal advice, or to communications between a lawyer and their client for the purpose of actual or anticipated litigation.
In a typical grievance or disciplinary investigation, the purpose will be to establish the facts and come to a conclusion, and it will be important to ensure that this is documented in such a way that it can be referred to in any subsequent dispute. It may then be inadvisable to seek to undertake a privileged investigation in that context. Conversely, in a compliance investigation where the primary risk is potential regulatory action against the company, it may be that the dominant purpose of any investigation is to seek confidential legal advice on the company's legal position. Such an investigation may be designed to be privileged.
What about press attention?
There are broader issues to consider at the outset. One material example is the risk of external press attention.
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On some occasions, a company might be willing to rebuff press enquiries, but often there may be a desire to disclose some of the findings of a privileged investigation. This can have unintended consequences. It can result in a waiver of privilege such that legal advice becomes disclosable. Similarly, the issue of what any complainant can be told about the conclusion of an investigation in a privileged context is often an issue that is considered far too late. Specific advice should be taken at the outset.
The importance of early planning
There are many factors to consider at the outset of a workplace investigation. In the rush to be seen to be investigating misconduct, it can be tempting to jump into an investigation without giving much thought to who will investigate and precisely what and how they will be investigating. That haste can result in unanticipated consequences further down the line, which can be avoided with some brief initial consideration of the potential uses to which any investigation may ultimately be put.
By David Woodward, senior associate, employment and compensation, Baker McKenzie
