Following the #MeToo movement and increased scrutiny on diversity, equality and inclusion and corporate governance, workplace investigations are on the rise.
Such investigations are a crucial step for employers to deal effectively with allegations of wrongdoing in the workplace, by gathering the relevant facts, to support fair and objective decision-making on the basis of the findings.
Employees may be faced with an internal investigation, either as the subject of a complaint or as a witness, which can understandably be a daunting prospect. The investigation process can also be extremely stressful and emotionally draining, particularly for those employees who are the subject of the matters being investigated, which could lead to disciplinary allegations against them.
We set out below our key dos and don'ts if you find that you are the subject of a workplace complaint which your employer is investigating.
Do ensure you have a clear idea of the scope of the investigation
- Whatever the extent of your involvement is in an investigation, it is crucial that you have a clear understanding of its nature and scope.
- Especially in the context of a complex investigation, there is likely to be a 'terms of reference' document, which sets out as a minimum who the investigator is and their remit, what the investigation hopes to achieve, how they will present their findings and to whom, and the intended timeframes.
- Knowing such information helps you plan effectively and can also give you peace of mind. So if you are asked to participate in an investigation, ask for any terms of reference, and do this at the outset.
Do be prepared
- Employers are likely to be keen to conclude an investigation as quickly as possible and may therefore schedule interviews at short notice.
- The investigatory interview is a key opportunity to put forward your version of events, so you need to feel comfortable and fully prepared when you attend. Do not hesitate to ask to postpone an interview if you feel that you require additional time to prepare.
- If you are concerned that you may not be able to present your full version of events during the interview, it is often a good idea to also prepare a written document, setting out your representations, or a timeline of key events/discussions with reference to documents evidencing the same, which you can provide to the investigator at or in advance of the interview.
Do consider legal representation at the outset
- It is worth considering at the outset whether you need legal representation, as it is much better to seek legal advice earlier rather than later in the process, to ensure a consistent and strategic approach throughout.
- Even if you are not the subject of an investigation, it may have reputational or even possibly criminal ramifications for you personally, and therefore it is critical to ensure that you are properly advised. Employers recognise that investigations have personal consequences for those involved and so may meet the fees of such legal advice on request.
- If you are working in a regulated business, an investigation and any subsequent disciplinary action may raise regulatory considerations, and so it may also be advisable to seek specialist advice on such regulatory aspects.
Do make requests for relevant documents/witnesses
- You are entitled to be given sufficient information to understand the basis of the investigation and present your version of events – you should therefore request from the investigator any relevant documents which may assist your preparation.
- You should also provide names to the investigator of any witnesses who you consider to be relevant and seek confirmation that they will also be interviewed, to ensure that the investigator is able to assess the matters being investigated objectively.
Keep in mind principles of fairness and natural justice
- An employer will want to ensure that the process is fair so that it can rely on the outcome of an internal investigation,.
- If any aspect of the investigation appears to lack procedural fairness or be contrary to the principles of natural justice, you should raise your concerns about this.
- Further, if under discrimination law you have a 'disability' (that is, you have a physical or mental impairment that has a substantial and long-term adverse effect on your ability to carry out day-to-day activities) which puts you at a substantial disadvantage in the investigations process, your employer should make reasonable adjustments to the process to accommodate your disability.
Don’t be tempted to retain/transfer documents
- However tempting it may be, do not transfer or retain confidential documents outside of your employer's systems. This is so even if you are only doing so for the purpose of an investigation.
- If you do in fact do this, you risk handing your employer grounds for disciplinary action, even if no disciplinary grounds are found regarding the substance of the matters under investigation.
Don't use your work email address when taking legal advice
- It is best to use your personal email address to obtain any legal advice in relation to the investigation. Keeping your communications separate will help protect their privileged status and avoid unintentional disclosures to your employer.
Don't just rely on your employer's notes
- It is likely that a notetaker designated by your employer will be present at any investigatory interview and they should provide you with a copy of the notes after the meeting, so that you have an opportunity to comment on them, to ensure they are an accurate record of what was discussed.
- It is prudent to take your own notes as well, so that you can compare these with the official version. If it is not practicable for you to take notes during the meeting, and you are allowed to bring a companion, this is something you can ask your companion to do. Alternatively, you can produce a note immediately afterwards, so that it is contemporaneous.
- Do not, however, be tempted to record the meeting if you do have not the express consent of all those in attendance as again, this could constitute grounds for disciplinary action.
Don't be defensive
- While being involved in an investigation can feel like a personal confrontation, it is unlikely to assist your position to be uncooperative, subject of course to ensuring any necessary protections.
- You should therefore try to be as helpful as possible during any investigatory interview and try to stay calm and collected throughout – if you find yourself becoming worked up at any point, ask to take a break, and then resume the interview once you have gathered your thoughts.
To learn more about our investigations practice, please see our investigations team.