Investigations can be tricky and delicate at the best of times, and there are a number of potential pitfalls into which the unwary investigator could fall. Often, one of the biggest pitfalls lies at the very beginning, before the investigation has even started. This is the point at which a sense of urgency and a perceived need for immediate action can lead organisations to rapidly launch an investigation without giving proper consideration to its scope and framework, and without clear instructions to the investigator appointed.
Comprehensive and clear terms of reference can provide the base for an investigation to be focused, directed and fair. Inadequate (or, in some cases, entirely absent) terms of reference are the equivalent of setting an investigator adrift in open seas. A good investigator might still manage the journey, but why take the risk?
There are some key questions that an organisation must ask itself before sending an investigator out into their workforce. The answers to these questions will form the terms of reference. The approach to this does, of course, need to be proportionate – but the more complex or high risk the investigation, the more value there is in really getting to the bottom of these points.
Framing the investigation
1. Who is commissioning the investigation? And who is vested with the authority to take the outcome of the investigation, and its findings, forward?
Having clearly defined roles from the start will ensure that the investigator is clear on who they should approach during the investigation should any issues arise which require the organisation’s input, and will also ensure that the investigator understands who they should report to at the end. This also allows for early consideration to be given to any potential conflicts of interest.
2. If the investigator is a lawyer, is it intended that the report will be subject to legal professional privilege?
In many cases the purpose of an investigation is to reach findings that will form the basis for further action, such as a disciplinary process. In these cases, seeking to have the report subject to legal professional privilege is unlikely to be desirable, appropriate or justifiable. However, depending on the nature of the allegations and the potential legal exposure for the organisation, a privileged investigation may be helpful, although it will not be privileged just because the organisation wants it to be. In either case, the approach must be clear from the start.
3. What are the allegations that the investigator is being asked to investigate?
These are sometimes clear (eg a specified act of sexual harassment), but in a lengthy grievance or complaint letter it might not be. If it is left to the investigator to frame the specific allegations, they could end up on a tangent, leading them to ask the wrong questions or omit the right questions. In the best-case scenario, this might simply result in wasted time with further investigation needing to be carried out. In the worst case, it could compromise the integrity of the entire investigation.
It is important that everyone is on the same page about what, exactly, is being investigated, and this might helpfully be achieved with a list of issues. In some cases, it may be appropriate to seek confirmation or input from the complainant at an early stage – and query whether the list of issues might be agreed with the complainant before proceeding.
4. What level of background to the complaint(s) will be given to the investigator and what will be included in the pack of initial documentation?
If you are lining up an external investigator, such as a QC, the briefing pack should be ready to go at the point of instruction, otherwise by the time it has been prepared the investigator’s availability may have changed, causing unnecessary delay.
5. What approach to the investigation would you like the investigator to take?
It is likely that you will want the investigator to draw the line somewhere. Do you want them to adopt a reasonable and proportionate approach to potential avenues of investigation, or an exhaustive one?
6. Are there any internal policies that the investigator needs to observe?
If so, these should be drawn to the investigator’s attention and copies provided in the briefing pack as well.
7. What standard of proof is the investigator applying to determine whether any particular facts or allegations are substantiated?
In most cases the standard of proof will be the “balance of probabilities” – please refer to our earlier blog on this topic for more detailed consideration.
8. How will witnesses be managed?
Will the investigator be free to decide on who they wish to interview, or would you provide an initial “cast list” of relevant people who you think should be included? Who will contact the witnesses in the first instance?
What will a witness be told about the allegations and about how their evidence will be used? Will they be given an opportunity to comment on their interview notes? Will anonymity be accommodated? This can create all sorts of challenges in terms of fairness, but in some cases it may be the only way to progress an investigation.
Confidentiality will be also important. In part this will involve informing witnesses of the need to keep the process and content confidential, but it will also be important to be clear that it is not possible to guarantee that what they say will be kept confidential, as it may be disclosable in the future if any legal action arises.
9. How will other evidence be managed?
Will arrangements be made to allow the investigator IT access or access to email systems? How will evidence be gathered, stored and secured?
10. What timescales would you like the investigator to adhere to? Are there particular deadlines that they need to be aware of?
This may be informed by organisational policies, but also relevant will be the availability of any key participants, and the impact of timings on any participants (for example, if someone is suspended this will create a time pressure that may be absent in a more general review of organisational practices and learning points).
Output and desired outcomes
11. How would you like the investigator to present the findings?
Are you expecting a detailed written report? Or would an oral briefing with summary findings in writing be preferred? Would you like the opportunity to ask questions? Are you expecting all evidence and interview notes to be appended to the report? Do you want the interview notes to have been approved by the witnesses?
12. Are there any particular findings that you would like to be notified of immediately?
For example, if there is a risk of harm in relation to an employee or third party, such as a child within a school setting, you would want to be notified of that immediately rather than waiting for the final investigation outcome.
Similarly, if something is uncovered that might appropriately be reported to the police, this may need to be known sooner rather than later.
13. What outcomes are you hoping the investigation will provide?
Is it meant to be fact-finding only? Does there need to be a specific recommendation (such as whether disciplinary action should be taken) or might wider recommendations also be desirable (for example, any learning points).
14. Who will the report be shared with?
Will the report only be shared in the first instance with the commissioning individual and (if different) the person vested with the authority to take the next steps? Might a copy be provided to the complainant? Or would you rather a summary of findings be prepared? Relevant to this will be any requests for anonymity and personal data considerations.
The terms of reference will necessarily be different, to a greater or lesser degree, for each investigation. They should reflect a careful analysis of what investigation is required for the specific allegations in question and the desired output. Whilst it can be tempting to gloss over this stage, investing time early on is likely to bear fruit in the form of an investigation report which is fit for purpose and meets your expectations.
That said, some of these early questions can be challenging. We regularly advise on, and carry out, investigations and would be very happy to assist with navigating any of these considerations.
If you require further information about anything covered in this briefing, please contact Charmaine Pollock, or your usual contact at the firm on +44 (0)20 3375 7000.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, May 2021