Top tips for senior executives subject to an internal investigation

Receiving a letter inviting you to an interview to investigate allegations of misconduct, often in conjunction with being suspended, is without question one, if not the, most stressful situations you will go through at work.

We have advised countless executives in this position and over the last few years borne witness to a significant shift in the way in which employers are responding to allegations of misconduct, resulting in a huge uptick in workplace investigations. There are numerous reasons one might point to, from the greater focus of regulators on matters relating to conduct, to the impact of social movements such as #metoo and #blacklivesmatter. This has led to workplace culture having a far greater commercial value than in the past. In turn the behaviour of those at the top of organisations is under far greater scrutiny; where historically certain allegations may have been dealt with in a more "light touch" manner, in today’s landscape a formal investigation has become the norm.

While there is of course much good that can (and undoubtedly has) come from organisations ensuring that potential wrongdoing is not swept under the carpet, not all investigations are conducted in a manner that adequately takes into consideration the interests of all parties (including those of the "accused"). With so much at stake, both in terms of your immediate role and future career and reputation, the importance of being prepared, understanding your rights and knowing when to challenge the investigatory process cannot be overstated. With this in mind we have set out below some top tips if you find yourself the subject of an investigation.

1. Support team

As a senior executive you will have operated in a high pressure environment for years and while you should (and will) draw on the resilience you have developed throughout your career, do not underestimate the mental toll of being the subject of allegations.

Drawing on the support of family and friends is invaluable but be aware of its limitations. It may be that the matters under investigation concern personal misconduct, for example alleged harassment, and you do not feel comfortable seeking support. Conversely, well intentioned support that you are receiving from those close to you may well be a barrier to you objectively considering your position.

You should consider at an early stage the additional impartial support that may benefit your mental wellbeing, whether medical or in the form of a counsellor.

2. Professional advice: When to take it and from whom?

If you are being invited to an interview concerning allegations of misconduct, the question is not whether you should take legal advice but when.

Oftentimes the cycle of emotions connected with being accused of wrongdoing means that legal advice isn’t sought at the outset. It is natural that your first reaction may be one of disbelief, perhaps outrage, and this can very negatively impact on the way you handle an investigation interview, often setting the course for the disciplinary process that follows.

We often see clients coming to us only at the point that they have been invited to a disciplinary hearing. While in many cases there is still much that a lawyer can do to influence matters at the disciplinary stage, your interview will be one of the key pieces of evidence upon which the disciplinary manager will determine the case. The importance of the way in which you conduct yourself in that interview and the way in which you answer questions cannot be overstated.

While you will certainly need employment counsel, you should also consider whether you would benefit from additional expertise to support you through the process. If you operate in a regulated profession, you will want to consider bringing in a regulatory specialist. If you are in a public position, it may be prudent to bring in PR / communications specialists.

3. Understanding your rights

Understanding your legal position will dictate the strategy you adopt going through the process.

It is human nature to go into "defence" mode when faced with threat. In our experience this can mean that clients focus on defending their position to a lawyer, with the danger that the full picture is not always being provided. This can waste valuable time and more crucially will hinder their ability to advise you. Once you understand the likely potential outcomes of the investigation, we can work with you to formulate the optimum strategy to place you in the best possible position in the circumstances.

Provide the warts and all picture (in fact focus on the warts). Your lawyer’s interest is solely to best advise you, there is no place for judgment and an experienced lawyer will have seen it all (and more) before.

4. Ensuring fairness in the investigation

Unlike other areas of employment law, there is no set legal framework for conducting a workplace investigation. The investigation should, however, comply with natural justice and the implied duty of trust and confidence. We will want to consider, without limitation:

• The selection of investigator: is the investigation being conducted "in house" and if so is this appropriate given the nature of the allegations and / or are there factors that make the choice of investigator inappropriate? Is this a case where an independent external investigator is more suitable?
  
  
• If you have been suspended, are there grounds to challenge that decision?
  
  
• Have you been provided with a copy of the investigator’s terms of reference to understand the scope of the investigation?
  
  
• Will you be provided with a copy of the investigator’s full report and if it is proposed that you will not (eg because the report will be treated as privileged or you will only be provided with a summary), can this be challenged?
  
  
• Do you have enough information to adequately prepare for the interview? If the issues you will be questioned on relate to documents, should you push to be provided with these before the interview?
  
  
• While you will have no legal right to be accompanied at the interview, might it benefit you to request that you be accompanied by a colleague and if so who (tactically) might it be helpful to have witness the process, as well as act as your companion?
  
  
• Are the allegations of a kind where you can credibly argue that a lawyer should be present with you at the investigation meeting?

5. Be prepared

In addition to ensuring that you have the necessary information to answer the questions likely to be put to you, you should also dedicate time to the question of how you answer questions. The tone you take in the meeting can fundamentally impact where things go from here, particularly if the allegations relate to personal behaviours. In many cases the instinct to fight and defend yourself should be kept in check for the time being, and the focus remain on staying calm and non-confrontational. In certain cases, demonstrating a degree of self-reflection in the context of personal behaviours can be helpful rather than harmful.

It can be incredibly valuable to map out likely areas for questioning and work through your answers, possibly role playing the same. You will not have control over the questions put to you by the investigator so careful thought should be given in advance to what information you want to ensure you convey. In this regard, and depending on nature of the allegations, it may be helpful to prepare a statement that you ask to read during the interview.

In addition to thinking about the answers that you will provide, it can be helpful also to think about other individuals within (and if relevant, outside) the organisation that will support your position. Although it will ultimately be for the investigator to determine who they wish to interview, it may be possible to influence that decision where you can demonstrate the importance of them speaking to certain individuals.

Although there will often be significant pressure from the organisation to progress your interview (and be mindful that you do have a duty to comply with the request to be interviewed), if appropriate you should consider whether you need more time to be adequately prepared. This may be to give you time to take legal advice but equally important is being mentally ready.

Our senior executive team have a wealth of experience advising executives who have been accused of wrongdoing and taken through investigation and disciplinary processes. We have advised across a broad range of alleged misconduct investigations, for example in the context of allegations of bullying and harassment, including where there might be alleged sexually impropriety or other forms of discrimination being investigated, on matters concerning alleged conflicts of interest, breaches of communications policies or confidentiality obligations or financial misconduct. Our advice benefits to senior executives strongly benefits from the fact that we regularly advise on the other side of investigations, for employers and complainants, as well as act as independent investigators appointed by an employer.

If you require further information about anything covered in this briefing, please contact Anna Birtwistle, Lauren Bennett 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, April 2022