Conducting a Workplace Investigation
There are a number of different circumstances in which you may need to conduct an internal investigation at your business. These include dealing with grievances and allegations of misconduct, harassment, discrimination, theft or fraud. These issues can, of course, also involve or give rise to complex areas such as legal or regulatory non-compliance and or civil/ criminal proceedings.
Whatever the circumstances, it is critical to carry out the investigation faultlessly, and in this article, we take a look at the key areas you need to consider when conducting a workplace investigation.
Should you conduct the investigation in-house or outsource?
There are a variety of factors which you need to weigh up in assessing who should conduct the investigation:
Impartiality
Who have you got in-house who is sufficiently impartial and independent, with no conflict of interest? Your investigator needs to be someone who can be completely objective and fair, with no bias or pressure in respect of the outcome. If your proposed investigator works within the company, this can be difficult to achieve, even if you believe they are impartial – consider how it looks to the outside world.
Expertise
Do you have someone in-house who has the required expertise, particularly where there are technical or legal issues involved? You may also require different areas of expertise such as forensic accounting, IT expertise and legal knowledge. You also want to ensure that any reports you obtain are independent and robust enough to stand up should the matter subsequently be subject to legal proceedings.
Capacity
Thorough and comprehensive investigations can be extremely time consuming. Has the person you have in mind got the time required?
Skill
In additional to all the above requirements, you will need someone who is experienced and skilled in conducting any interviews, which often require sensitivity, lateral thinking and adeptness.
You cannot afford to compromise on any of the above, and if you haven’t got someone who fits the bill, you should consider outsourcing the conduct of the investigation.
Preparing for the investigation
Whether it’s going to be done in-house or externally, careful preparation is key:
Scope
It’s important to define the scope of the investigation and this involves clearly identifying the issues and the extent of the investigation. In some circumstances this can be finely balanced, and you may need professional or legal advice to help with this.
Evidence
Identify the key witnesses and identify and preserve evidence. Evidence may take the shape of emails, documents, CCTV footage, information published on social medica accounts, bank accounts and financial transactions. In some circumstances, the material will be readily available, and in other cases, you may need to trace evidence over several months or years. Some evidence may not be within your control. At this stage, issues of confidentially may arise as well as (in some cases) issues surrounding the legality of the circumstances in which evidence was or could be obtained. Again, it may be prudent or essential to take legal advice.
Privacy and privilege
Data privacy and or legal privilege are complex areas, and you must be mindful of the implications of both. Your investigation should comply with data privacy rules. This means considering the scope of material that can be reasonably requested, the storage of any data and how long it will be kept for.
Timetable and logistics
You will need to move the investigation forward in a timely manner while allowing sufficient time for a proper investigation, but you also need to think carefully about how you protect and safeguard all those involved. Will meetings and interviews be conducted in person? Are there any sensitive issues, for example, that may require the investigator to be of a specific gender?
Bear in mind, that timetables can be difficult to stick to and there will inevitably be delays. Be prepared to factor this in as you plan and allow time for your investigator enough time to give the matter due consideration once they have reviewed all the evidence.
Briefing the investigator
Whether in-house or external, your investigator needs a clear brief. What do you want from them: findings of fact, recommendations about next steps? What information do they need in addition to the evidence, i.e. have you provided them with copies of the relevant policy documents or employment contracts?
Conduct of the investigation
The investigation itself may take anything from a few hours to many weeks to complete. There are a number of areas that you must keep top of mind throughout:
- Confidentiality and integrity of evidence. As mentioned above, you must protect any potential victims or whistleblowers, but also those accused of wrongdoing. You will need to try and ensure witnesses don’t discuss their evidence amongst themselves beforehand to protect the integrity of the evidence. If any of the participants are subject to an NDA, you should ensure you understand the implications of this for them, and if necessary, take legal advice on this.
- Advice and support. Ensure participants are aware of any HR support available to them and also aware that they can seek legal advice should they wish to. If you haven’t already, ensure there is support available from HR.
- The interviews. Notify interviewees in writing of the meeting’s date, time, location and the reason for the interview. Ensure the rights of all participants are explained and confirm whether they have a right to be accompanied.
Best practice is to ensure interviews are recorded and that the interviewee is aware of that. Consideration should be given to the type of recording equipment to be used and the interviewer should also check that the interviewee is not recording the interview.
Reporting the outcome
You should have agreed with the investigator the manner in which their outcome will be recorded and reported to you, as well as the time frame.
However, you should also consider what information should be supplied to the participants and all stakeholders, once again, within the appropriate parameters of confidentiality and safeguarding. Who will do this, what format will it take and how much information will be provided?
You may also have to address the media. Consider engaging a specialist PR agency to help manage sensitive external comms, but at the very least, you should already have in place a crisis management plan. For more information about this visit:
Finally, you may also need to disclose the outcome of the investigation to the applicable regulators. Once again, if this is anything other than completely clear cut, you should consider taking legal advice.
If you would like to discuss any of the above, please get in touch.
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