Where alleged misconduct takes place in the workplace, an independent investigation is normally an essential means of finding out and confirming what happened.
Joseph Lappin and Charlie Thompson, partners in our Employment team, have extensive experience conducting workplace investigations for employers. In this article, they outline key scenarios that warrant a workplace investigation and explain why seeking specialist, independent legal advice is sensible in these scenarios.
What is a workplace investigation?
A workplace investigation is a process conducted to uncover facts related to allegations. Workplace allegations often concern claims of misconduct and bad behaviour. Serious conduct allegations will include claims of harassment and discrimination.
When should you do a workplace investigation?
Employers will want to investigate and find out what has happened for several reasons, including to ensure compliance with internal policies, the law and relevant industry regulations. The key aims are normally to ensure that the interests of the complainant (and the person accused) are protected and to maintain a respectful and professional environment.
Employers typically conduct investigations internally, often through the human resources department. However, sometimes, it is sensible for employers to instruct lawyers to conduct a workplace investigation.
The most common reasons for a workplace investigation are:
- Allegations of harassment or discrimination. Complaints related to harassment or other forms of discrimination should be taken seriously and investigated promptly. These issues not only affect the victim but can also create a hostile work environment for other employees if there is a perception the employer does not take the issue seriously.
- Bullying. Bullying can have a detrimental impact on workplace cohesion and, if allowed to continue, on the trust the workforce has in its employer.
- Reports of unethical or unlawful conduct. Any indication of unethical behaviour, including improper use of client information or breach of confidentiality, necessitates an immediate investigation into what took place.
- Fraud: Fraud investigations can be complex. Often, a trained investigator will be best placed to uncover what has happened.
- Whistleblowing: When an employee blows the whistle, it is normally crucial to investigate the claims thoroughly to uphold transparency and accountability.
- Allegations against senior employees: Where allegations are raised against senior employees, an external investigator will usually be appointed to ensure that staff believe a thorough investigation will be undertaken and that the senior employee will not exert influence over the process.
How serious does the situation need to be to trigger an investigation?
There’s no hard and fast rule on how serious a situation needs to be for an investigation to be necessary or beneficial. Any allegation that could potentially violate the law, minimum industry or regulatory standards, or societal or ethical norms should be considered serious enough for a business to trigger an investigation. This includes any reason listed above or another form of misconduct that could cause harm to the organisation or its employees.
Even seemingly minor issues, if left unaddressed, can escalate and lead to significant legal and reputational risks. Businesses should adopt a proactive approach and investigate promptly whenever there is a credible complaint or concern.
Often, for a workplace investigation to be seen as credible, it should be conducted by subject matter experts who understand the relevant issues and communicate them in a way that all involved can understand.
Do I need a solicitor for a workplace investigation?
The best option will often be a qualified employment lawyer. Trained solicitors with experience of conducting workplace investigations will know how to handle sensitive information and maintain confidentiality.
Equally important is the impartiality of the investigators. Asking an employee from within the business, or even from a third-party organisation with existing connections, to run an investigation can lead to accusations of conflict and bias or create strained relationships going forward. When difficult decisions are required, or the stakes are high, having a qualified and wholly independent legal professional as the investigator enhances the credibility of the findings.
Conclusion
Partner Joseph Lappin comments: “By recognising the typical trigger points for an investigation and seeking proper legal advice, businesses can navigate complicated, potentially catastrophic situations proactively and protect their interests. Timely and thorough responses can prevent minor issues from becoming major legal headaches.”
Partner Charlie Thompson comments: “When facing an investigation, the benefit of requesting independent legal advice cannot be overstated. It is important to consider what kind of investigation is required and to speak to an expert with experience in that area.”
Find out more on our workplace investigations expertise page.
If you require assistance from our employment team, please contact us.
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