When businesses decide to conduct investigations, there are some key issues worth considering before commencing the fact-finding exercise.
Our previous post discussed common pitfalls and when investigations are not needed. Here, we set out the pre-investigation considerations:
1. What is being investigated?
“The scope” of an investigation is critical.
Facts that are not disputed (and often facts are not), do not need to be investigated. It may be, for example, that it is the offence or implication of the facts that is disputed such as whether conduct amounts to harassment?
2. Who should conduct the investigation (and should it be a lawyer)?
Phrases such as “independent” and “impartial” are often used but what do they mean and what is actually required?
Appointment of the appropriate investigator is key. An investigation should be carried out by anyone who is not involved in the circumstances being investigated. Ideally, it should be carried out by someone who is trained to maintain a focussed and specific fact-finding enquiry, aware of the risk framework for the business and their specific role.
Too often, investigators interview too many witnesses, carry out a wider fact finding than needed and make decisions about what the facts mean which is outside of the role of an investigator. For example, a report will state that the conduct did amount to harassment.
Whether or not a lawyer should be instructed depends on how protected the business wants the investigation to be (see point 4 below).
3. Who can see the report of the investigation?
Deciding from the outset who owns the report is often missed and can lead to unnecessary mistrust if a decision is made after the investigation that the complainant is not entitled to see it. It is perfectly reasonable to decide and be clear at the outset that the report belongs to the business/organisation and will be used to determine next steps but will not be shared with the complainant.
4. Will the report of the investigation be disclosed in court should the matter be litigated?
A report is likely to be disclosed in litigation unless it is subject to privilege.
If this is a concern for a business/organisation, it is better to instruct a lawyer (from a law firm) to conduct the investigation. That will allow it to be subject to privilege and have the necessary protection. This may be achieved by instructing an in-house lawyer but that will depend on the circumstances.
5. Will a subject access request catch the report or any related documents?
Depending on the nature of the allegations being investigated, it is worth being aware of the risk that it may be caught by a subject access request. If that is to be avoided, consider whether any exceptions apply and whether legal professional privilege can assist.
6. How is the business exposed?
Consider what the potential outcomes are: what effect do they have on the business and what risks do they pose. It may be that once this assessment is conducted, a decision is made that on balance, it is not worth conducting an investigation and in fact the information that is already available is sufficient to deal with the issues.
