Now that Sue Gray's report has been published, what lessons does 'Partygate' hold for those conducting workplace investigations?
1. Define your scope
It is very important that the scope of the investigation is clear from the outset. A well-defined scope and set of objectives provide the blueprint for how to conduct your investigation.
In many cases, defining your scope will be relatively straightforward. For instance, Sue Gray's initial remit was to investigate three specific alleged gatherings, with flexibility to investigate other gatherings where there were credible allegations. In general, the scope of an investigation will necessarily expand and/or evolve as further lines of inquiry are uncovered during the course of the investigation - Sue Gray eventually looked into 16 specific events.
It is therefore advisable to adopt a flexible approach towards scope while, at the same time, ensuring that any additional areas of investigation remain proportionate to the issues in question. Further, it is best to avoid abrupt changes in scope as they risk undermining the credibility of the investigation as a whole.
2. Pick the right team
Make sure your investigation team has the appropriate skills and experience. Whether investigating the principal minister of Her Majesty's Government, or events at the local bingo hall, it is generally advisable to limit the number of people involved, to minimise the chances of unwanted leaks and/or dissemination of confidential information. It is therefore a good idea to make clear to all witnesses that your investigation is strictly confidential and that they should not discuss its existence or content with anyone else (other than their legal advisers).
A close-knit investigation team is also vital if you intend to rely on legal professional privilege to resist the disclosure of potentially damaging findings (such as the existence of "failures of leadership and judgment") to a wider audience. Consider at the outset whether it is appropriate and if so how to conduct a privileged investigation, and how best to maintain privilege.
3. Keep communicating
Investigations are inherently all-consuming, and it is easy to forget one's intended audience when knee-deep in interviews and report writing. However, Partygate reinforces the importance of maintaining open and meaningful lines of communications with one's stakeholders while the investigation is underway, so as not to lead to adverse inferences as to reasons for a delay, for example.
4. Consider interim action
It is important to be live to the possibility of taking some action before your investigation concludes. For example, there may be evidence available at the outset of a workplace investigation, or discovered during its course, which means you need to consider suspending or even terminating the employment of a particular individual.
If circumstances allow, it may be possible to run a disciplinary process alongside the investigation. An employer doing so should look to make any such process fair, thorough and compliant with internal policies and the ACAS Code. Doing this can be particularly helpful where the subject matter of the investigation is in the public domain and there is widespread pressure for immediate remedial action.
5. Implement lessons learned
Those who commissioned the investigation will want to consider the investigation report findings. This enables you to make a properly informed decision about whether and what action to take. Where the investigation terms of reference also ask the investigator to make recommendations, an employer will wish to consider those as well.
As is evident from Partygate, a targeted, well-run investigation with clear findings and conclusions can help an employer identify and address potential issues of concern. Managed properly, it can also help restore trust and confidence in the organisation.
If you would like more information on how best to conduct an investigation in your business, please get in touch with your usual Mishcon contact or with a member of the Employment team.