- Whistleblower protection
If the matter to be investigated has come to light through disclosures made by a whistleblower immediate consideration must be given to how the whistleblower is treated. There must be no victimisation by reason of having whistle blown. Confidentiality should be preserved so far as possible. Anonymity should be discouraged, subject to legislative requirements. Follow the company’s whistle blowing policy and keep the whistle blower informed to the extent possible in the circumstances on the progress of the investigation into their concerns. There is no need to provide substantive information in relation to the conclusions of the investigation due to confidentiality restrictions.
- Data protection
The investigators will wish to get hold of relevant documents and information as quickly as possible. Data protection policies and IT usage policies should be checked to ensure that adequate consent has been given for the monitoring of emails, searching of desks, and examination of laptops and computers. Any obviously personal data should be stored separately. A note should be taken of the proportionate steps taken to preserve confidentiality of personal data. The business need for the investigation should be recorded by the investigation team. Protocols ought to be in place to reduce the risk of materials being seen by more people than necessary. If transfer of personal data outside the EU is contemplated, and in particular transfer to the US, then careful consideration should be given to whether the transfer falls within one of the exceptions to the prohibition of the transfer of personal data outside the EU.
An employee may be suspended where there is preliminary evidence which suggests there is a misconduct case to answer or if the employee’s presence could put the integrity of the investigation at risk. However, check the employee handbook and disciplinary process and comply with any procedural requirements. Make sure the suspension is recorded in writing and that the employee is asked to remain available to come into interview as required and to provide documentation. Access to company computers and mobile devices should be stopped. Think carefully if suspending a senior individual as to the impact on his or her reputation. Suspension is not a disciplinary step but can be hard to return from. However, if customers are at risk or a regulatory breach has been identified it is usually safest to suspend.
- Separate legal representation
Where it is clear at an early stage that an individual employee may be at risk of having committed a criminal offence then the employer should suggest that the employee obtains separate legal representation. There is no need to do this unless it is clear that there is potential criminal liability. This will usually be after the first investigation interviews have taken place when the facts are established. In clear cases of theft or bribery such a risk may be apparent at the initial stage. There is no obligation on the employer to pay for the independent legal advice. There is also no right for the employee to be legally represented in any subsequent employment disciplinary meeting. However, an employer may choose to pay for legal advice for an employee in relation to any regulatory investigation.
- Regulatory investigation interview
If carried out by external lawyers this will normally be a privileged interview for the purposes of the privileged regulatory investigation. Unless a warning is given that whatever is said in this interview can be used for disciplinary purposes by the company, the interview note will not be able to be used to support any disciplinary process against an employee. This is because it would not be fair to use that material unless the employee knew that it could be used in any employment process against them. In addition, the interview will be privileged and the company will not wish to waive that privilege.
- Employee-focused investigation
Often the regulatory investigation takes place on a privileged basis, the employee is suspended and then a privileged and confidential report is provided to the regulator. After that, it is usual for the employer to consider what employment disciplinary steps may be necessary. It is important to consider the status of the information obtained in the regulatory investigation and not to waive privilege unnecessarily. An employee-focused investigation should preferably take place – either on a privileged or open basis depending upon the sensitivity of the matter. Appropriate warnings must be given to the employee at interview that anything recorded in the interview may be used for disciplinary purposes. Following that investigation, the employer can decide whether or not to commence disciplinary process using materials gathered in the employee-focused investigation.
- Disciplinary process and paperwork
The invitation to the disciplinary meeting and accompanying paperwork must set out the case against the employee fairly. However, in any regulatory matter it will be essential to keep disclosure of evidence relevant only to the individual employee as there may be future employment litigation in a public tribunal. In addition, it is important to rely on contemporaneous documentation so far as possible and to consider carefully how to use any witness evidence or investigation report produced from the employee-focused investigation. It is essential not to waive privilege of any materials created during the regulatory investigation process.
- Employee raises a grievance
If an employee raises a grievance during the disciplinary process or even earlier, perhaps during the initial regulatory investigation, it is important to follow the company’s grievance process. It is not necessary to run a separate grievance process where the substance of the grievance is central to any disciplinary proceedings. However, where there are different grievances raised, some which concern the substance of the disciplinary and some which are about other matters, best practice would be to run different and concurrent processes for each.
- Co-operation agreements
Sometimes it will be imperative to obtain the co-operation of the employee in a matter even if it is felt that they may well have committed some form of misconduct. It is possible to settle all claims with employees during a disciplinary process although payment of substantive sums in settlement where there has clearly been wrongdoing may attract the attention of the regulator. Reasonable expenses incurred by the employee should be paid during the period of cooperation although legal expenses may also be funded. The company may not indemnify the employee for any fine.
- Subject access request for personal data
In the UK, often an employee will raise a data subject access request during an investigation. The fact that an employee may bring subsequent legal proceedings against the employer is not a valid reason for failing to comply with the data subject access request. However, issues of proportionality, third party confidentiality and legal privilege may assist the employer in scoping out the response and limiting the provision of documentation.