When workplace investigations hit the headlines, the risks can escalate quickly.
Suddenly, employers are dealing with media attention, social media commentary, employee concerns and potentially serious reputational risk – all while trying to conduct a fair and effective investigation.
We were recently privileged to host the International Employment Lawyer’s Workplace Investigations Masterclass, which included three lively and engaging panel discussions. Each was designed to address the thorny issues which can and often do arise in such situations, with valuable insights from a variety of panellists whose work (whether in-house or in private practice) keeps them at the coalface of workplace investigations.
In our view, the learnings from the sessions were too good not to share, so we have asked Squire Patton Boggs’ James Pike (Partner) and Sarah Wilkinson (Director), both of whom have significant experience in carrying out workplace investigations and were panellists in two of the sessions, to share their five key takeaways from the event, with the first two below and three to follow.
- Make sure you have the right team in place
When an investigation comes across your desk, a key first step must always be to consider who will be the appropriate person/team to conduct it.
A key part of this will be to ensure that you obtain a clear understanding of the specific factual issues which need to be determined, and who is best placed to do so. The answer to this will depend on both the nature of the allegations and importantly, whether this is something which might be made public. Poise and gravitas will be crucial. We also recommend that you consider relationships, reporting structure, level, power dynamics, and legal requirements. As we have seen so often in the press in recent years, one important protective step when faced with serious/sensitive allegations might be to announce that the company will launch a full investigation – instructing external counsel for that can help to show that the company is taking the matter very seriously/intends to be transparent etc.
It may also be appropriate to instruct an external investigator where you would like to try and gain legal privilege over the investigation output (for more on that, please see our later post).
Any internal or external investigator should be independent/unbiased so far as practicable (this will depend on the size of your organisation and the seniority of the subject(s) and concern raiser(s)).
Other key considerations might include working out which jurisdictions are involved (where is the complainant, where did the alleged act(s) take place, what is the relevant legal jurisdiction and where are the witnesses, for example), plus identifying any specialist expertise/skillset that the investigator might need, along with the all-important issue of capacity within any in-house team. Investigations can be time-consuming and complex, so that in and of itself might lead you to conclude that it could be better to instruct someone external to carry out the investigation for you. - Terms of Reference and proper scoping are essential
As mentioned above, at a very early stage in your investigation, you are going to need to work out what you need to know. Is it literally just the bald facts of what happened, or does it go further into the why, or recommendations for the resolution of the issue being investigated? Is there any particular legal, contractual or policy definition in play that will dictate (or at least inform) the decision you have to make? Is the issue limited to that particular employee or should you be looking into the relative treatment of others too? Are you actually being asked to reach a conclusion on law rather than fact, or upon issues that are of a specialist nature outside your technical knowledge? What are the scope, purpose and boundaries of the exercise? Without these, the investigation may very quickly grow legs and lose its way.
It is also important to be clear about how you are going to go about finding answers to these questions. What witnesses will be interviewed? What steps will be undertaken to identify relevant documents? Are there any limitations on the investigation which need to be set out at the outset?
Before you start investigating all over the shop, we recommend that you sit down and map out on paper the avenues you are probably going to need to explore and the questions which need answering, as well as the steps to be taken to do so. This can be worked up into a terms of reference document for the investigation.
The above will serve as a useful guide and framework for your investigation, but do not have to bind you. As the matter progresses, you may find that some of those roads are dead ends and can be abandoned, while others open up into new areas you will need to look at. So long as you can trace your thought processes as you go along, departures from your initial plan should not worry you and the terms of reference can always be updated as you go along.
Look out for parts two and three of this blog in which we will share our final three takeaways, starting with the complex but critical issue of privilege.