Employment Investigations Checklist

In recent years, internal investigations into employee complaints and employee conduct have been on the rise across a variety of industry sectors. Employment (or workplace) investigations can take many forms, and can be instigated by the employer, by an employee, or by a third party (such as a regulator, vendor or a customer). For example, investigations are frequently a critical component in addressing disciplinary issues and grievances relating to bullying and harassment allegations, as well as whistleblower complaints.

Employees are more empowered than ever to raise concerns, following the #MeToo movement, heightened interest in conduct issues from governmental and regulatory bodies, and numerous high-profile cases making the news. In addition, the COVID-19 pandemic prompted an increase in complaints being raised in writing, leading in turn to more formal processes and investigations into such complaints. With many employers operating internationally, the need for investigations to cross borders has also increased, adding another layer of complexity to an already sensitive process as employers need to consider carefully the extent to which local laws may apply.

This Employment Investigations Checklist outlines key steps for employers to consider when faced with an internal employment investigation. It is not meant to be comprehensive, as each internal investigation must be tailored at the outset to the specific circumstances and issues implicated by the particular complaint. In addition, many aspects of an investigation will vary depending on the local laws in the relevant jurisdiction—taking local advice is always recommended.

STEP 1: DECIDE WHAT FORM OF INVESTIGATION IS APPROPRIATE

• Acknowledge the grievance, complaint or allegation directly to the complaining party. When doing so, consider any applicable deadlines or forms of acknowledgement, such as under the EU Whistleblower Protection Directive and corresponding national laws.
• Decide whether to conduct a formal or informal investigation.
  • Identify relevant internal policies; for example, whistleblowing, grievance, bullying and harassment, and/or anti-bribery and corruption policies.
  • Certain factors may indicate that a formal investigation is appropriate; for example, internal policies and procedures, past practices, or the seriousness of the complaint.
  • Alternatively, an informal approach may be possible; for example, if the issue is less serious.
  • The employee may have a preference as to whether the investigation is conducted formally or informally. Employers should ensure their response is reasonable, consistent with past practice and policies, and proportionate to the nature of the complaint.
  • Identify circumstances where a formal investigation is always appropriate; e.g., a high-level executive is involved, or when lawyer-client privilege is key.
  • Depending on the sensitivity of the matter and the jurisdiction concerned, consider whether there is an employee representative body that can be included in the investigation in order to enhance its impartiality.

STEP 2: TAKE INITIAL ACTIONS

• Identify stakeholders implicated by the complaint (e.g., other employees or third parties).
• Address any immediate safety risks.
• Consider whether any employment actions need to be implemented pending resolution of the investigation (e.g., whether employees need to be suspended, moved, or placed on administrative leave).
• Identify whether the complaint implicates wider issues. In whistleblowing cases in particular, avoid the risk of addressing only the employment retaliation complaint without separately investigating the underlying issue that the whistle was purportedly “blown” on, e.g., violations of law, rules, and regulations, securities violations, accounting issues, health and safety violations, etc. Assess whether any steps need to be taken to address these issues.
• Take immediate steps to preserve evidence:
  • Suspend routine document destruction procedures in relation to relevant employees (e.g., Outlook, instant messaging services, mobile phones).
  • Identify witnesses ceasing, or about to cease, employment.
  • Consider whether to send document retention notices to relevant individuals and whether that needs to identify the complainant by name, which could cut across confidentiality/anonymity and in some cases be considered retaliatory.
• Identify who needs to be notified of the investigation—for example, the board, audit/risk committees, other management, legal and compliance—but retain confidentiality as much as possible, and to the extent required under applicable laws (e.g., under the EU Whistleblower Protection Directive and corresponding national laws). Consider also alerting internal/external PR if there is likely to be publicity.
• Ensure that the HR, compliance, and legal teams are working together so that all considerations are covered.
• Comply with all relevant regulatory obligations (where applicable). In particular:
  • Consider whether there are any processes that applicable regulators expect to be followed and assess whether such processes align with your procedures and employment law obligations.
  • Any notification to the regulator should comply with the regulator’s requirements and timeframe.
  • Consider the potential wider impact that any notification may have on the business and impacted individuals, and ensure this is managed appropriately.
• Create a communications protocol to determine when issues should be escalated and reported, and to confirm which issues attract legal privilege. In cross-border investigations, consider the potentially different privilege rules in different jurisdictions.
• Remind the individuals involved of the need for confidentiality. Confidentiality will often be an important protection for those involved in an employment investigation, whether they are the complainant or the accused.
• Whistleblowing policies will often require added levels of confidentiality or even anonymity. Exceptions should be made, for example, to allow employees (whether they are the complainant or the accused) to speak to a trade union representative, a legal advisor, any regulators, police, or medical professionals.
• Note that it may not always be possible to maintain complete confidentiality during the investigation (e.g., if details need to be disclosed to a regulator or the police, or due to data subject access requests).
• Remind those involved of any resources that the employer has to support them, such as employee assistance programs or helplines.

STEP 3: APPOINT AN INVESTIGATOR

• Appoint an investigator who is credible, not involved in the issue at hand, and not likely to become so at a later stage:
  • For complaints raised under whistleblower protection laws (e.g., the EU Whistleblower Protection Directive and national implementation laws), the investigation may have to be conducted by a person or team determined in advance, such as an internal reporting body.
  • When an investigator can be freely chosen, it may be beneficial to appoint one with previous experience with the subject matter, and who is senior enough to conduct the investigation.
  • The level of seniority required may depend on your policies or the seniority of the employee under investigation.
  • Think ahead to others who may need to be appointed to deal with any appeals or disciplinary action following the investigation.
• Ensure that the potential investigator has sufficient time to complete the investigation thoroughly, taking account of the complexity of the issues.
• Consider whether an external investigator should be appointed. This may be appropriate for sensitive allegations, where senior individuals are involved, or where there may be regulatory implications.
• If an external investigator is appropriate, consider whether appointing an external law firm, barrister, or other professional to conduct the investigation would be appropriate.
• Consider whether any subject matter experts are needed to assist with the investigation.
• Consider legal privilege. Investigations will sometimes be carried out on a legally privileged basis, so that the employer can understand its legal position before taking further action. Applying privilege rules to employment investigations can be fraught with difficulties, whether an in-house legal team is involved or an external law firm. Privilege rules are generally construed narrowly and will vary across jurisdictions. In most cases, they will not apply to all stages of an employment investigation; for example, witness interviews will not usually attract privilege. Other stages should be capable of protection but early planning is required to identify issues, such as who the “client” is, so that communications are restricted to a sufficiently small group of people.

STEP 4: PLAN THE INVESTIGATION

• Once an investigator has been appointed, the investigator should develop and document an investigation plan. This might include:
  • The scope of the investigation and terms of reference, setting out the issues that are (and are not) being investigated and the investigation methodology.
  • The output of the investigation (e.g., a written report), identifying who will be informed of the findings, and whether decisions and/or recommendations are required or only findings of fact.
  • The appropriate timeline, including any mandatory deadlines to notify complainants, accused, regulators and/or other authorities. Management should be informed of the timeline to mitigate the impact that the investigation may have on the business.
  • Any relevant organisational policies or guidelines that may need to be followed.
  • Whether any interviews will take place.
  • Any documents that will need to be reviewed (including electronic searches of systems and mobile phone/computer imaging).
  • What expert assistance is required (e.g., forensic IT, legal, etc.)
  • Communications protocol and key stakeholders.
• The plan may change along the way; make sure to document any changes.
• Keep the plan and/or timeline under review and be ready to revise it if new information becomes available during the investigation.
• Consider whether there are cross-border issues that impact the investigation plan:
  • If other jurisdictions are involved, they may have laws prohibiting certain levels of investigation taking place. For example, it may not be possible to transfer information out of a particular country for the purpose of supporting an investigation involving foreign authorities, courts or regulators.
  • Local employment laws may require you to adapt the approach to an investigation. For example, suspending employees may not be possible in certain jurisdictions, while in others, notification to a works council may be required.
  • Privilege and disclosure rules may vary, as can data privacy rights (e.g., in relation to the imaging of mobile phone and electronic devices) and the ability to transfer data outside of the jurisdiction.
  • The approach to the investigation meetings will need to be carefully considered against cultural sensitivities. A certain interview tone may be acceptable in one country, yet be considered hostile in another.

STEP 5: IMPLEMENT THE INVESTIGATION PLAN

• Ensure the investigation is timely and transparent.
• Maintain confidentiality as far as possible (and where legally required).
• Source, collate, and review documents and other material for evidence.
  • These could be emails, phones, laptops, or CCTV recordings. They should be obtained in good time (e.g., before the records expire or are auto-deleted) and in accordance with data privacy laws and your data privacy policy. Expert assistance may be required, such as forensics, IT, and accounts.
  • When gathering evidence, data privacy regulations may apply and employees may be able to request that the data collected is made available to them.
• Follow the communications protocol, and update key stakeholders on progress and changes to the timeline.
• Determine who to interview and the appropriate interview process:
  • Consider the importance of the sequence of interviews.
  • Identify the appropriate language in which to conduct the interviews to ensure this does not impact their credibility or that of the wider investigation.
  • Keep the list of witnesses under review.
  • Assess whether expert witnesses are required.
  • Decide who will carry out the interviews, and maintain the same team for consistency and to assess credibility.
  • Consider where the interviews will take place and the need for confidentiality, which may impact location and timing.
  • Consider whether any reasonable adjustments are required for the interview process.
  • Employees may be hesitant to participate in interviews during an investigation. The investigator should address any concerns with the employee and aim to ease any apprehensions.
• Consider the right to be accompanied under local laws. In some jurisdictions, the complainant may have the right to be accompanied at any grievance investigation hearing by a trade union representative or colleague or even a lawyer. Check your policies and contracts, as they may include a broader right to accompaniment. If the allegation is sufficiently serious, it may also be appropriate to allow legal representation during the investigation (if not generally required). Interviewees with disabilities may mean that adjustments need to be considered regarding companions.
• Arrange a note-taker for the meeting. An audio recording may be requested but this will depend on the employer’s policies, the circumstances of the investigation, and permissibility under local laws.
• Following the meeting, consider whether to share the notes with the interviewee so they can make amendments or comments that can be included in the final version of the notes. In some jurisdictions, such as the United States, this will not be done if the investigation is being conducted by lawyers and the notes are considered privileged/attorney work product.

STEP 6: MAKE FINDINGS OF FACT

• Consider and discuss with stakeholders, including your legal team, whether and how to document the investigation’s findings.
• Once the investigation comes to a close, the investigator should make their findings of fact.
• Consider what form of report will be made; e.g., written or oral, fact-finding only or with legal analysis and recommendations for the decision-maker to consider. Will it be privileged (if conducted by lawyers), or on-the-record for the purposes of an internal process, such as a grievance or whistleblowing investigation? In such cases, it may be that two reports should be prepared—a privileged version and a non-privileged version.
• Ensure that the reasoning is clearly set out.
• Ensure every factual statement made is accurate and provide a source for each fact (e.g., interview/document).
• Do not leave out facts that conflict with any particular finding(s). Ensure they are addressed.
• Consider whether the scope includes making recommendations and/or a decision.
• Notify legal/relevant departments before documenting any breaches.
• Determine the extent of the information that will be provided to the complainant regarding the outcome of the investigation.
• In circumstances where there has been a regulatory or criminal breach, the regulator or other authorities may have the right to see any non-privileged materials from the investigation.

STEP 7: DETERMINE THE WAY FORWARD

• Decide what the next steps should be; this could be formal or informal action. Consider whether you need to report to regulators and/or other authorities. Further investigation may be required if new issues have come to light.
  • If formal action is chosen, consider which policy/process you are moving to (e.g., a disciplinary process).
  • If the investigation was fact-finding only, pass to other(s) for the decision.
  • If the investigation is privileged, take care about any wider sharing of the report, as doing so may waive privilege.
• Consider a media strategy if the investigation report is disclosed.
• Consider updating company policies and training programs to prevent similar issues arising in the future.
• Collate investigation records and store them in a secure and central location.
• Other issues, outside of the scope of the terms of reference, may have arisen during the investigation. The investigator should inform the employer of any issues that may need further action in a separate document.

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