In this article we look at why an employer may decide to instruct an external investigator to conduct a workplace investigation and how this process works.

The challenges faced by employers in the last two years have been significant and far-reaching. The Coronavirus pandemic has stretched resources, exposed employers to unexpected risks, and posed unprecedented problems in the workplace. Some sectors have really suffered during the pandemic, inevitably leading to more workplace disputes and grievances. On the flip side, some sectors have been incredibly busy and at times found their resources stretched.

As a result, we have seen an increase in the number of instructions we have received to conduct workplace investigations. In this blog we take a closer look at why this is and how our investigations team can assist.

Why instruct independent external investigators?

A common reason for instructing an external investigator is because the issues involve senior employees or board members. Instructing an external investigator can ensure a more rigorous and impartial investigation, politically it can also be easier to have an external law firm conduct the investigation. Employers may also instruct external investigators because there is a need to ensure the investigation is seen to be impartial, and to reduce the risk of litigation. Alternatively, it could simply be the case that the employer lacks the internal resources to conduct the investigation.

An added benefit of instructing a law firm to conduct the investigation is that it may be possible to ensure the investigation has the benefit of professional legal privilege.

So, how can we help?

We are regularly instructed by boards, HR teams, and in-house counsel to conduct investigations or to support and advise on an investigation. In the rest of this blog we take a brief look at how we can support workplace investigations and our team’s experience in this area.

Independent investigations – our approach

When we are instructed to carry out an internal investigation, we first take time to understand any relevant background and the nature of the issue being investigated. Once we have done this, we agree the terms of reference for the investigation with the client and, as appropriate, other interested parties. Whilst instructing us will certainly reduce the workload for a client’s internal teams, we will usually need some practical assistance in gathering evidence and arranging meetings with witnesses. However, other than that we can liaise directly with witnesses to conduct investigation meetings. Once we have concluded our investigation, we will prepare an investigation report and deliver that report to the client and any other interested parties.

Each matter is led by a senior lawyer with experience of contentious legal matters, advising in relation to investigations, and of conducting internal investigations.

Law firms and other professional advisers

In certain circumstances it may not be appropriate for an employer to instruct its usual external professional advisers to conduct an investigation. For example, the adviser may not be able to independently investigate the issue, or in doing so, there may be potential for a conflict. Our internal investigations team can be instructed by other professional advisers on an independent basis to carry out an investigation as a discrete, one-off instruction.

Our experience

Our team has decades of experience advising and supporting clients on workplace disputes and investigations. Examples of work undertaken by the team includes:

• Carrying out an internal investigation and review of our RSL client’s employment practices and procedures and reporting arrangements, following the death of a resident.
• Supporting an investigation into allegations of serious sexual harassment made by a junior female employee against two senior male managers. We reviewed documentation and CCTV footage, interviewed the complainant, a number of witnesses and the two male managers concerned, and assisted in the preparation of a comprehensive investigation report.
• Providing investigation support to a multi-national company’s internal compliance team. This involved supporting the company’s own internal investigators in gathering, reviewing, reporting on evidence, and providing support during investigation meetings.
• Undertaking an investigation in relation to allegations of sexual harassment in a local town council.
• Investigating grievances raised by two senior directors against each other.

Well planned, thorough, and impartial investigations are such an important first step in dealing with many workplace issues. In this blog we have hopefully given you an insight into when it may be appropriate to instruct an external investigator and the potential benefits of taking this approach.  If you would like to know more about our investigations experience or how we could help your organisation (or your client’s) please contact Michael McNally.