Businesses may face allegations of systemic discrimination, large-scale bullying or harassment allegations involving multiple complainants or allegations with a regulatory or criminal element. Each investigation is unique, but there are some key issues which businesses should always consider.
Who should investigate?
A business may wish to appoint an external investigator rather than using its internal HR team to investigate. This can have many advantages. It avoids placing a heavy burden on HR which could interfere with day-to-day work, an external investigator may be perceived as more independent and credible (particularly if the allegations are already in the public domain) and the investigator may have helpful specialist knowledge (for example, an understanding of any criminal or regulatory implications).
What is the investigation looking to achieve?
It is essential to define clearly at the outset what the business wants to accomplish and define the investigator's remit according to those goals. There are a range of legal and practical issues to consider, e.g.:
- How wide should the investigation be? A narrow remit may be more achievable but may risk missing important information.
- Will the investigator be required to decide whether there is a case to answer or make a final determination on issues?
- Will the investigator determine factual issues only or make recommendations? (Bear in mind that if you ask the investigator to make recommendations but then don't follow them, this could damage the business' reputation).
- What standard of proof is appropriate – "balance of probabilities" or a higher standard?
- Will the investigation be covered by legal privilege? This will enable the business to keep the findings confidential but can create issues if the business then wants to take formal action on the basis of the investigation findings, as a parallel non-privileged investigation may then be needed.
Evidence and witnesses
For an investigation to be credible and effective, the investigator will need wide access to relevant documents and witnesses. This needs to be balanced against privacy and GDPR obligations and the rights of individual witnesses.
If there might be a regulatory or criminal investigation into the same issues, it is essential that the investigation is conducted in a way which doesn't prejudice that investigation and that evidence is not inadvertently destroyed or tampered with.
Other key issues to think through include:
- How you will deal with uncooperative witnesses or document custodians;
- Whether witnesses will be able to remain anonymous;
- Whether witnesses should have their own legal advisers present in any interview;
- Whether witnesses will be given copies of their witness statements and/or the final report.
Communication and outcome
An internal investigation can cause significant internal disruption and have major reputational implications. As a result, it's important to consider how information about the investigation will be communicated internally and externally, including:
- What will employees be told about the investigation while it is ongoing and how will confidentiality be maintained?
- If there is an external investigator, will employees be able to contact him/her directly or should they funnel queries through one point of contact?
- How will the investigator keep the business updated about their progress?
- Who (if anyone) will see the draft report and will they have an opportunity to comment on it? (Although this may iron out factual inaccuracies, it may also compromise the independence of the report).
- Will the report (or excerpts of it) be released to the media and will the business make any other public statements?
- How will recommendations be implemented?
Although major investigations are very challenging and may bring unpalatable facts to light, if planned carefully and handled well they are a powerful tool for changing an organisation for the better.