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Common themes arising from sensitive investigations

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Getting reluctant employees back into the workplace

Following on from our popular workplace investigations webinar we summarise the questions we received.

The FAQs below represent the common themes coming out of the questions we received. In terms of terminology, we use “reporter” for an individual who has raised concerns (whether through a grievance, whistleblowing escalation or some other channel). A “subject” is the individual about whom concerns have been raised.

Anonymous and reluctant reporters

In the most sensitive circumstances, a reporter may not want to pursue or provide further detail on their allegations. Try to understand their concerns and think creatively about how you can make them feel more comfortable about participating, for example, by providing appropriate reassurances on anonymity and non-retaliation.

You may not always be able to alleviate concerns where a reporter is a particularly vulnerable person. Factors such as age, family circumstances, past experiences and immigration status play a role here, and certain foreign jurisdictions have local laws that leave reporters exposed to additional (and sometimes quite substantial) risk. In these circumstances, discharging your obligation to investigate can be challenging. You may have to proceed on limited information. When doing so, proceed with caution to protect the identity of the reporter. This can be done by restricting the people who know their identity, and when witnesses are questioned do not refer to the named individual, for example, state “evidence has come to light…” In the absence or paucity of additional witness evidence, consider whether there may be physical evidence that could be considered as part of the investigation.

Ultimately, your ability to investigate the matter may be limited by the reporter’s lack of participation, and this could affect the outcome. This would need to be made clear to the reporter at the outset in order to manage their expectations of what you might be able to achieve.

Former employees and third-party witnesses

There may be certain circumstances where it is beneficial to interview former employees or third parties. Such individuals may feel able to speak more freely than your own staff, given that they will not themselves be within the reporter’s or subject’s reporting lines.

Where former employees and third parties are approached, but they do not want to participate in the investigation, think carefully about the best way to move forward. It is unlikely that third parties will have any obligation to participate. Sometimes former employees may have an ongoing obligation to assist in such processes when asked to do so – for example, under their contract of employment or a settlement agreement. Even so, reluctant witnesses tend not to be forthcoming or open.

It may be helpful to try to establish why they don’t want to participate. Do they have any concerns that you can help to alleviate? Do you need to make clear that they are not the subject of the investigation? Similarly, can you draw any inferences from their reluctance while being careful not to make assumptions that cannot be substantiated and, therefore, expose you to challenge?

Character witnesses

In sensitive investigations, the issue may come down to a “he said, she said” situation. Character witnesses may be appropriate in these circumstances to provide evidence more generally on an individual’s usual conduct, behaviour and integrity.

Approach character witnesses with caution:

Think through the relationship between the subject and the witness – does the witness have a vested interest in protecting the subject? Are they part of the subject’s “inner circle”, or are they potentially complicit in the alleged behaviour (including by having not escalated this themselves)?

Where the allegation is of sexual harassment or assault, consider carefully whether the witness can actually speak about the likelihood of the subject engaging in this conduct – just because the witness has a high opinion of the subject does not mean the subject is not capable of such conduct. Similarly, just because a witness has a low opinion of the subject (for unrelated reasons), this does not mean the subject is more likely to have engaged in such conduct.

Make sure a balanced approach is taken – do not only speak to witnesses who you expect to take a dim view of the subject, or those witnesses who you think will view the subject favourably.

If you are speaking to character witnesses for the subject, you should also speak to character witnesses for the reporter to ensure that you are being consistent.

Interviewing a subject

There are a number of considerations to bear in mind when deciding when to interview the subject of an allegation. You may want to speak with the subject last in order to put all of the concerns and evidence to them in one interview. Conversely, you may want to interview the subject earlier due to concerns about leak risk (ie one of the witnesses informing the subject in advance about the investigation).

Ideally, the subject should be interviewed once to minimise the stress and to hear all the evidence in one go. This is not always possible as further evidence may have come to light. You may also need to confirm or clarify points as you consider holistically all of the evidence. This approach lends credibility to your process, as the subject will have the opportunity to respond to all the evidence before you finalise your findings.

Witnesses’ comments on investigation notes

There may be times where witnesses provide comments that do not accord with what was said in the investigation. In these circumstances, the interview notes will reflect which changes the individual has made, alongside those which are considered to be an accurate reflection of the meeting.

If the point is material, consider asking the witness to clarify whether their amendment is intended to reflect what they said during the meeting, or their position on reflection. The witness may be candid and explain that they have amended the note with what they meant, rather than what they agree that they said.

Recordings and transcription

It is important to have an accurate record of any witness interview, and there are many ways of doing this. Our experience is that transcriptions of audio recordings can be difficult to follow because they are recording conversations that ebb and flow. In addition, where the subject matter is particularly complex, or involves the use of jargon or acronyms which would not be familiar to those outside of the industry/company, third-party transcriptions are liable to contain errors which may be material.

Video or audio recordings are less common and, in our view, may be counterproductive. As best practice (and in some jurisdictions, as a matter of law), it will be necessary to obtain the witness’s agreement to record these conversations. Given the relationship of employer/employee, consent may not be real consent. Further, witnesses may be more circumspect and guarded in meetings where they are being recorded, compromising the probative value of the evidence you will receive.

Retention of investigation documentation

Documents created in the investigation (interview notes, emails, reports etc) will contain personal data belonging to your employees, as well as potentially third parties. The processing and retention of personal data in the UK and EU is subject to strict data protection rules under the GDPR and related legislation. Personal data should not be retained for longer than is necessary, and retention needs to be justified by reference to the purpose for the processing.

How long the data should be retained for will depend on a number of factors. Generally, we see these sorts of documents being retained for the duration of the relevant employment relationship, and for a reasonable period afterwards. The documents may be necessary in defending any legal claims that arise. A “reasonable period” will depend on the context of the employee’s exit, the jurisdiction in which you operate and the nature of the investigation, but is likely to be informed by applicable limitation periods for bringing legal claims.

There may also be regulatory requirements that prescribe how long documents need to be retained.Consult your data protection policy, your employee privacy notice and your retention schedule, which should set out the length of time for which you will need to retain certain types of documents. 

Cases with multiple investigators

It may be appropriate to have two investigators on a matter. Often particular skill sets, backgrounds or diverse perspectives are necessary to ensure the investigation deals with the issues appropriately and two investigators will help to balance any actual or perceived bias.

Investigators are required to take ownership and control over the investigation to ensure they take responsibility for (and can explain) any decisions if subsequently challenged on appeal or in litigation. This can be more difficult where there are two investigators. The two investigators must work in tandem, form their conclusions jointly and (ideally) be in agreement. In terms of drafting the report, this could be done together by both investigators or by one investigator with the other feeding in comments. The important point here is that both investigators are comfortable with the content of the report and the conclusions drawn.

Where joint investigators reach different views on the same matter, it is important that there is a mechanism for resolving that disagreement. This could be achieved by one investigator being designated the “lead” investigator, with ultimate discretion over the findings. Alternatively, the joint investigators could be required to refer the matter to a third person for their determination (although you may want to exercise caution over increasing the number of relevant decision-makers).

If you would like to receive a copy of the recording of our webinar Navigating the Challenges of Sensitive Workplace Investigations: Tips and Techniques please send us your request.