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.
Here we continue our five key takeaways from the event, please see here for Part One.
- Privilege, privilege, privilege
There is no such thing as a quick précis in relation to privilege, given it is a notoriously complex area. However, the brief point to be made here is that at the start of every investigation, it is worth spending some time thinking about whether it applies, and/or whether you want/need it to. The starting point for both questions is no.
There are two main types of legal privilege: legal advice privilege (which protects confidential communications between a lawyer, and a client for the purpose of seeking and receiving legal advice) and litigation privilege (which applies where litigation has started or is contemplated, but not where it is merely a possibility). A document will not become privileged simply because it is marked as such, e.g., where it is actually about facts found rather than the applicable law. Equally, not all communications between a lawyer and a client are privileged. There are strict criteria that must be met in order for a document to be covered by legal professional privilege. Sometimes an employer may involve lawyers (either internal or external) to ensure that certain documents created during investigations are protected by legal privilege, but this will very much limit the employer’s ability to rely on them in court or tribunal to support later action.
Even where you are in-house counsel, work done to ascertain facts probably will not be covered by legal privilege since it does not concern the seeking or provision of legal advice. Internal colleagues used to dealing with you under cover of privilege should therefore be put on notice at an early stage that correspondence with you about facts for these purposes is unlikely to gain the same protection when you are wearing your investigator hat. In broad terms, your findings of fact will not be privileged but your advice as to what to do about them could well be. And that is true whether the employer uses internal or external counsel to do the digging.
Bear in mind that claims of transparency and the assertion of privilege do not sit comfortably together and that that assertion on anything but the clearest of grounds will inevitably lead to allegations of a cover-up.
Suffice to say, if the issue of privilege is likely to be important in your investigation for any particular reason, we recommend you seek specialist legal advice.
- Don’t forget the rights of the individual you are investigating
Particularly where allegations are made against a high-profile person, or where the nature of the allegations made is particularly unsavoury, or for some other reason the investigation is likely to attract media attention, there can be a temptation to act quickly, to be seen to be doing something, before the Court of Popular Opinion does its worst.
In that moment, as the longtime Editor of this blog, David Whincup, often reminds us – don’t forget that alleged bullies and harassers have rights too.
While we can understand a temptation to act quickly to get the individual “out of the building”, metaphorically or otherwise, it is important to remember that although suspension is supposed to be a neutral act in the UK it is rarely seen as that – and particularly where the investigation is sensitive or high-profile, that step in and of itself might be perceived as a pre-judgment of the individual’s guilt. As such, suspension must not be a knee-jerk reaction to a disciplinary allegation and should be a carefully-made decision, considering both the employment and wider commercial risks of either taking this step or not. A lack of attention paid to the person accused could relatively easily be translated into a constructive dismissal claim.
When considering whether it is appropriate to suspend an employee, you should always consider what you gain from suspension – would the employee’s continued presence at work intimidate possible witnesses, risk retaliation, obscure evidence or otherwise potentially prejudice a fair investigation, or the interests of others? If so, why? You should always be seen to consider whether the same protections could be achieved by other means, for example, a temporary transfer to another role or department or site.
We also recommend that you keep the suspension under review and communicate this to the employee. Suspension should be for no longer than is necessary in the circumstances. It is important that if an employee is suspended pending an investigation, the investigation is carried out promptly.
In circumstances where an employee is suspended, it is particularly important not to fall into the trap of simply forgetting about them and their welfare. It is recommended that there are regular check-ins with them and updates on the process, particularly where it is taking longer than might be ideal. Aside from being recommended from an employee relations perspective, it also guards against any inference that the suspended employee had already been cast adrift and any future dismissal was always the intention.
Another issue which often crops up is confidentiality – and again, this will often require a balancing exercise between the rights of the individual making the allegations and the alleged perpetrator.
While it is entirely understandable that an individual making a complaint of a sensitive nature may wish to remain anonymous, the subject is entitled to be provided with enough detail about the allegations against them to enable them to respond. This will not always mean sharing the concern raiser’s complaint in full and/or their name. However, you should ensure that you comply with any applicable provisions within your own policy and guidance and that before withholding specific details of any allegations from a subject to protect anonymity you have first conducted (and documented) a careful analysis of the need for such anonymity in the particular circumstances. If the complainant’s insistence on protecting their anonymity makes it realistically impossible to investigate their allegation fairly (i.e. to allow the accused a fair hearing), you may be unable to proceed – that is part of the judgement the adviser must make.
Look out for Part Three of this blog in which we will share our final takeaway, which looks to the future and the way in which the employment law landscape is changing.
