The aim of an independent investigation is to establish findings of fact. This often arises following allegations of serious misconduct, financial mismanagement, bullying, harassment, sexual misconduct, and regulatory breaches, but can also be initiated by an employer of its own volition where matters may give rise to serious concern.
In our experience, having acted as investigators, as well as advising many professional services firms, partners, employers and executives on workplace investigations, it is critical that investigators consider certain key issues and steps, some of which are outlined below, to ensure an effective, thorough and fair independent investigation. This is particularly important in high consequence investigations and highly sensitive allegations.
1. The investigator’s independence: Front of mind in any investigation should be the independence and impartiality of the investigator. It is imperative to first ensure there are no conflicts of interest that could undermine the investigation’s credibility and objectivity. To ensure integrity in the investigation, independent investigators should not have any connection to the suspected misconduct or allegations, nor any material personal or professional ties to the parties involved in the investigation or any vested interest in the outcome. This inevitably can be more challenging for an inhouse investigator, particularly in a smaller business. This is one of the reasons why many businesses engage an external independent investigator for visible independence and impartiality.
2. Expertise: The investigator should have sufficient legal expertise and experience (relevant to the subject matter) in conducting a comprehensive investigation. The investigator must be well-versed in the relevant employment laws and investigation procedures, though investigators can seek privileged legal advice should they require any assistance in understanding the law (or the law/legal standards in a particular jurisdiction).
In particular, investigators should understand the rights of all parties involved and the legal standards that apply to harassment, discrimination and bullying claims. Whilst the investigator will not be asked to judge the alleged behaviour or conduct, they need to understand why particular facts might give rise to breaches of law or the employer’s own requirements and policies (which an investigator should request from the employer at the outset).
3. Professional Empathy: With sensitive issues, witnesses may potentially be traumatised or reluctant to convey personal and distressing evidence; understanding how to respond and carefully enquire, and acknowledging the impact on the witness of their participation in the investigation, is fundamental. It is important to allow a witness to feel able to tell their story; their evidence can be an important step for them. The investigator should not adopt a casual approach; this can result in inaccurate assumptions, evidence being withheld or overlooked, and an incomplete investigation.
4. Terms of Reference: These are the blueprint for why, what, how, where and by whom the investigation will be conducted. The investigator should assist in their drafting and own them. The Terms of Reference will cover the allegations, set out the background and relevant documents, the scope of the investigation (i.e. will it be limited to fact finding or will recommendations also be expected (other than whether or not there is a case to answer)), the investigation process (how witnesses will be determined, who will invite them, how they will be interviewed, whether they have the right to be accompanied, how the interviews will be recorded, how documents/statements will be confirmed and kept) and the likely timeframe of the investigation.
Having identified the allegations, flexibility should be built in should circumstances change or new evidence emerge. Thought should be given as to how to update the instructing party if the allegations are broader, and if the allegations appear to change in nature to incorporate criminal (or more serious criminal) conduct, which have not been reported to the police, then consideration should be given as to whether the complainant is minded to do this and if the current investigation should be paused to allow it.
5. Fact-Finding: Investigators must approach fact-finding with an open mind, gathering evidence from all relevant sources; consider physical evidence, such as CCTV, computer or phone records and documents, as well as relevant witnesses. Investigators should document how the evidence was collected and what it reveals. Building trust with witnesses is key to obtaining all relevant evidence. At the outset, briefly inform the witness of the investigator’s role, seek their permission to record the interview (if doing so) and emphasise that the basis for this is to ensure an accurate record of the conversation, and advise that they are welcome to take a break at any stage if needed.
Open questions, followed by closed/specific questions, are helpful. Keep the purpose of the investigation in mind and prepare questions ahead but be prepared not to stick rigidly to them. Avoid asking leading questions and multiple questions, which could cause a witness to become overwhelmed or miss a question. Enquire as to the relationship between the witness and others involved.
Seeking clarification where appropriate to probe a response is fine, but avoid interrogating a witness, as this could result in a witness closing up.
Summarise a scenario back to the witness and ask them to affirm that what has been said is correct and whether there is anything further they wish to add. Ask witnesses if there are any individuals whom they consider should be interviewed and why, although do not promise or infer that all suggested witnesses will be interviewed.
If a witness is recounting traumatic events, acknowledging that their evidence may take time to recount is important. The investigator will also want to check the witness has access to additional support; this can be generic or bespoke support made available by the employer, an association of which the individual is a member, or their own medical advisor or insurer. A medical intervention may be needed and the investigator should quickly raise any concerns with the employer about the wellbeing of a participant to the investigation.
6. Analysis and tricky issues in determining evidence: Preconceived notions or biases can skew the investigation and lead to unjust outcomes. It is essential to get balanced evidence from all sides and to treat all evidence and statements with equal scrutiny. The analysis of facts should be based on the balance of probabilities, the standard of proof in civil cases, which means determining whether it is more than 50% likely that the alleged conduct occurred. If the investigator is faced with conflicting accounts, they must weigh the evidence using the balance of probabilities. This involves carefully assessing credibility, seeking corroboration (is the evidence supported or contradicted by other evidence, and should further evidence be collected), and documenting the reasoning behind factual findings, any recommendations made and the decision-making process comprehensively. Where it is not possible to determine whether an allegation is substantiated or not, an investigator should state why it is not possible to draw a conclusion.
Avoid relying on demeanour or body language or making assumptions about why a witness has not previously reported something or recorded it; we are not experts in these areas. In sexual misconduct cases, there is no typical response and therefore, an alleged victim’s behaviour cannot of itself indicate credibility or otherwise. There may however be inherent plausibility in some witness evidence that even without corroboration gives rise to it being credible.
7. Witness anonymity: When a witness requests anonymity, consider the reason for the request and explore their motives. It is relevant to consider whether an employment tribunal would consider resultant action (i.e. dismissal) was fair, within the band of reasonableness, and will consider why there was a need for anonymity, as this could prejudice the alleged perpetrator’s right to a fair process. There is a need to balance the perceived need of the witness and the alleged perpetrator’s need to know details of the case against them. Often this boils down to genuine fear of reprisal v right to know the case against them. Anonymity should not be the starting point or default.
Anonymous witness evidence will have its place though – special consideration may need to be given in cases involving serious misconduct. In sexual assault cases, there are particular rules which provide a right to lifetime anonymity for the victim, and employers and investigators should tread particularly carefully and ensure they are aware of those rules and fully compliant with them.
8. The reluctant or difficult witness: Appropriate planning by the investigator of an interview with a reluctant witness will help the investigator to retain control and not allow the agenda to be governed by that of the difficult witness. Where the witness is reluctant, a well planned investigator will need to be patient; building some rapport with the witness in the first instance, being prepared to ask the question in different ways and give the witness every opportunity to broach the difficult subject that they appear to want to avoid. Similarly, some witnesses may go off track or labour certain points which may not be relevant to the matter under investigation. Whilst witnesses should have an opportunity to detail their comments and accounts, at times it may be necessary for investigators to move the discussion forward and on to another point.
9. Confidentiality: It protects the complainant, the accused, and the integrity of the investigation. Information should only be disclosed on a need-to-know basis, and all participants should be reminded of their obligation to keep the details of the investigation confidential, subject to the usual exceptions (e.g. where information is disclosed in compliance with the law or where a disclosure is a protected disclosure under s 43A of the Employment Rights Act 1996). Be honest with witnesses about the extent of confidentiality that can be promised.
10. Data Protection: Compliance with data protection laws is non-negotiable. Investigators must handle all personal data in accordance with these laws, ensuring that information is collected, stored, and shared legally and ethically. Documentation should be encrypted and saved into a restricted file and processed in accordance with GDPR requirements. The investigator may wish to consider the extent of these responsibilities in advance. In particular, for what purpose and for how long will they retain the investigation materials post completion; should they be retained if litigation is contemplated and what responsibilities might there be in the event of a DSAR. Investigators should consider whether any personal or sensitive information should be redacted from witness statements or report findings.
11. Privilege: An independent investigation will rarely, if ever, be capable of attracting privilege under English law, and any initial drafts of investigation reports may also be disclosable.
12. Non-Interference with Criminal Investigations: It is not impossible to run an independent investigation concurrently with criminal proceedings, but generally, criminal investigations will take precedence (at least in the first instance). A witness to a police investigation should, where reasonably possible, give their first statement to the police, not an investigator/employer, and are entitled to avoid self-incrimination and remain silent. Where possible, an investigator should therefore avoid actions that could compromise a criminal investigation but be aware that the investigation may be disclosable to the relevant law enforcement body.
13. Timely Resolution: While thoroughness is key, it is also important to conduct the investigation in a timely manner. Prolonged investigations can exacerbate tensions, impact the business’s operations and impact staff morale. They can also lead employees to lose trust in their employer or feel unsupported. Aim for a prompt resolution without compromising the investigation’s quality.
14. ‘Maxwellisation’: In a public investigation, ‘Maxwellisation’ is designed to ensure fairness to those accused and accuracy in any reporting. A person or institution which faces criticism in a public report is given an opportunity to respond to the same prior to its publication. This occurs by either providing that person/body with the relevant sections of the report containing criticism or a summary of it for them to comment on. This is therefore an additional consideration for an investigator, once provisional findings and draft conclusions have been reached, to share the same with relevant parties. In private investigations, for the same reason, providing drafts to the complainant and the accused or the employer of the relevant findings of facts which relate to them in the draft report (without including recommendations or necessarily global conclusions) is helpful in avoiding the potential for any factual inaccuracies to impact the overall findings in the report.
15. Reporting and Recommendations: Upon conclusion, investigators should provide a comprehensive report to the instructing employer or law firm:
- the process of the investigation – commenting on how the investigation was conducted, the evidence collected and any missing evidence, whether any witnesses could not be interviewed and why and whether and why any witnesses declined to confirm their statements or wished to remain anonymous;
- the investigator’s factual findings and whether there is a case to answer in respect of the allegations – it is important to set out the facts that have been established and those that have not, with reference to the key pieces of evidence and reasoning behind each finding; and
- if appropriate, recommendations for resolving the issues identified.
Copies of all supporting documents, including witness statements, should be clearly referenced and annexed to the report.
The report should be clear, concise, written in an objective style and free of legal jargon, to be accessible to all stakeholders.
At the heart of any investigation is the desire to understand the truth and the need to avoid bias, evidence tampering or otherwise hampering of an investigation, as well as completing an investigation efficiently. These objectives will often need to work in parallel with legal, regulatory and criminal matters and be sensitive to considerable reputational issues at play.
If you are interested or involved in investigations, please join us for the expert join our Investigations panel on 25 June 2024 at the in-person IFSEA Annual Conference to discuss “Strategies For Investigating and Defending Allegations of Executive Wrongdoing: The legal and reputational issues involved in internal, regulatory and criminal investigations.” Our distinguished panel, variously experienced in high profile US, UK, and French employment, regulatory and criminal investigations, will provide valuable takeaways for future investigations.
At CM Murray LLP, we specialise in navigating the complexities of workplace investigations with precision and expertise. With particular expertise and experience in acting as independent investigators, as well as advising employers, professional services firms, senior executives and partners on investigations, our dedicated Investigations Unit offers tailored solutions to meet your specific needs. For more information or to discuss our undertaking a workplace investigation as the independent investigator, for your organisation or your client, or to discuss investigations more broadly, please contact Partners Emma Bartlett, Andrew Pavlovic, Senior Partner Sarah Chilton, Partner and General Counsel Beth Hale or Associate Gabrielle Lintott.
CM Murray LLP is a leading specialist employment, partnership and regulatory law firm. We are ranked Tier 1 and Band 1 in Legal 500 and Chambers and Partners for Partnership Law and Senior Executives and are recognised as a “standout firm for partnership disputes. The team are knowledgeable, hardworking, strategic and responsive.” (Legal 500 UK, 2024)
