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John Bowers QC writes on Principles of external investigations
Many lawyers are being asked to lead investigations into employment issues, often of sexual harassment allegations. These investigations of course come in all shapes and sizes and raise very different issues. I concentrate here on employment investigations but even they may involve regulatory or governance issues as well as strict employment points. A later article will deal with privilege issues.
Sometimes it will be a lawyer alone investigating, at other times (s)he will be assisted by others. Some will be formal, others informal. Some will be public sector, others private. Some may be provided for by statute, such as designated independent person investigations which used to be required before senior council officers were suspended or dismissed in England and Wales and now survive only in the latter. Most will be set up in an ad hoc manner. In some cases there will be recognised parties (the complainant and the accused), in others it will be more general. It is always important to check the provisions of the policy and procedure (if any) under which the investigation is set up.
These (fairly obvious) points taken from my own experience as a barrister may be of some general use to those called into to investigate
- Find out about the culture of the organisation and its history before commencing the investigation and have a cast list. Ensure that the organisation is committed to the investigation and that it will give you the resources to carry it out, and by that I mean both financial and clerical resource. One problem may be to ensure that all “parties” and any lay or professional representatives co-operate with you in bringing the investigation to a speedy and successful conclusion (as you may have no statutory powers). Think of how you will deal with people who are recalcitrant; your only remedy may be to name and shame them, but this is itself quite a risky strategy (and may be perceived as partiality).
- Clarify precisely the scope of the investigation which you are undertaking before you start it- it may be helpful to have a formal investigation plan; in particular are you appointed as an investigator determining whether there is a case to answer, making preliminary recommendations as to breach and/or sanctions, or as the decision maker. Does the body appointing you have formally to adopt your report and any recommendations (or just the latter)?
- Ensure that there is a venue for the investigation which is suitable for it. Some witnesses may feel uncomfortable in the office where alleged harassment took place although you may need a site visit at some point. A neutral venue is usually the best. Check also that everything you do is consistent with the way the organisation is dealing with any welfare issues.
- Have a clear plan as to the order of witnesses, which may be different depending for example on whether you are investigating a grievance or it is an investigation with potentially disciplinary consequences. You may need to recall some people after you hear from others (and this might be done by telephone or skype). Clearly communicate to the parties and the witnesses the exact requirements of confidentiality and/or data security and data protection requirements and take the opportunity to reiterate these requirements in correspondence.
- Decide whether you will proceed by cross examination (or questioning through you as the chair) and if so, make clear the parameters of the questioning. If there is not to be cross examination, have a clear view at the outset how you will resolve any conflicts in the “evidence”. Some cases may be document heavy, whereas others will have little in writing for you to review. Check also how you are going to ensure that you are given the relevant documents.
- It may be important to consider at the outset whether there are any key documents which it is important for you to see, and then in the report to itemize and index the documents that have been reviewed. You may need to ask the parties to disclose documents but ensure they are clearly labelled and shared with the other side (unless some are too sensitive).
- Ensure that you have a scribe (electronic or otherwise) who (or which) can turn round the transcribing of interviews as soon as possible. Normally I would ask the “witness” to confirm the accuracy of the transcription (although this can lead to unfortunate disagreements which are difficult to resolve without a recording and can be time consuming). Software enables interviews to be recorded on the mobile phone (so long as the interviewee is aware), and depending on the size and resources of the client organisation it may be worth agreeing to their meeting the cost of having this transcribed. It may be useful having the interviews spaced so as to allow for receipt of the transcriptions before interviews with key further witnesses where appropriate.
- Set at the outset a date for the conclusion of the investigation, but if that date cannot be achieved (for unforeseen reasons) keep the organisation and the parties fully informed both as to the likely end date and why there has been a delay.
- Ensure that you have a clear idea of what the questions are and check that they are consistent with any initial allegations which were formulated before you became involved and that you answer them fully (unlike Robert Mueller!). Ensure the report is full and properly attributed. The last thing you want is the supplemental question and a reopening of the inquiry. Some public sector procedures require the production of a draft report sent to the parties for comment and correction before the final version is produced (eg standards investigations relating to elected councillor conduct).
- Make clear to whom the report is to be distributed and how. Will it go to the “parties” or just to the organisation which has commissioned you to do the report. Often confidentiality is paramount so think of the way in which you will seek to ensure that this is maintained. I would normally tell the parties 48 hours in advance the exact timing of the release of the report and insist that both parties receive it at the same time.
- You may have to communicate with the parties about the progress of the enquiry. Don’t just rattle off hasty notes to them; take a considered response and ensure all relevant parties receive them.
- Is legal representation allowed? If so, ensure the representatives know to what extent they will be allowed to participate (is it just to make submissions and to intervene on procedural matters or will they be allowed to question?)