Is an external investigator the right move for an internal workplace issue?
If you’re an employer dealing with an internal workplace issue, you may be considering the question of whether it’s best to engage an external investigator. So what’s the right move? The best approach really depends on the circumstances!
The level of investigation and the resources that should be devoted to it, will depend on how the behaviour comes to your attention, the nature or seriousness of the behaviour, and the individuals involved.
The benefits of an internal investigator - typically your HR Manager or another member of your management team - are that:
- They know how your company operates, its processes and its culture
- They have intimate knowledge of your company’s policies and procedures
- It’s a cheaper alternative than engaging someone externally.
The benefits of an external investigator are that:
- It allows your HR Manager to be able to attend to their ordinary daily tasks (conducting an investigation can be very time consuming)
- It’s easier to combat an accusation of bias or conflict of interest
- They have experience in investigating workplace issues
- There is the potential to claim privilege over the investigation report by engaging lawyers to conduct/manage the investigation on your behalf.
Legal professional privilege – what is it?
You can seek to claim privilege over communications between you, an employee, and your lawyers, if the main purpose of those communications is for lawyers to provide legal advice, or if the communications are in anticipation of legal proceedings.
Unfortunately, it’s a little trickier than just instructing a lawyer to engage an investigator. In order to establish privilege over the investigation report and maintain it the following recommendations, at the very least, should be adhered to:
- The letter of engagement from the lawyers to the investigator should clearly indentify that the purpose of the investigation and report is to assist them in the preparation of legal advice
- All communications with the investigator should be through the lawyers (unless purely administrative – for instance, arranging interviews)
- Distribution of the report should be limited
- Anyone with access to the report must treat it as confidential
- All communications relating the investigation and report should be marked “Privileged & Confidential,” including the final report.
Why would you want to claim privilege over an investigation report?
As long as the privilege claimed over an investigation report is maintained, you can refuse to reveal the contents of the report to an employee or any other person or body that may be interested in it.
Circumstances that might mean that you want to protect the content of a report occur when:
- There are several employees involved in the investigation and/or a mix of allegations
- There are issues surrounding the disclosure of the identities of witnesses
- It may assist with ongoing employee relations, particularly if it’s likely to contain inflammatory statements
- You want to protect confidential company information (for example, sensitive commercial information) that may be referenced in it.
If you’re faced with having to investigate a workplace matter, give Coleman Grieg’s Employment Law team a call so that we can help you strategise the best way to proceed in the given circumstances. Getting things right from the start can avoid costly mistakes which may create further problems for you to have to manage in the future!