In July of 2021, the International Bar Association Global Employment Institute issued a report which outlined how internal company investigations are taking on unprecedented importance, with businesses seemingly under more and more scrutiny to stamp out bad behaviour.
Conducting an internal investigation, regardless of how it originates, can seem daunting. Mistakes might delay outcomes and increase costs and distress for those involved. It is therefore vital to follow basic principles to avoid any major pitfalls and allow the investigation to take place as smoothly as possible. We list some of the most important principles in this article.
1. Create an appropriate culture
Importantly, from the outset and before anything might happen that gives rise to the need to investigate in the first place, create a culture within your organisation that fosters an environment favourable to conducting investigations. This includes having policies and procedures in place that outline what steps are to be taken if and when an investigation is initiated, as well as ensuring that those policies are disseminated among and understood by employees and fully supported by leadership.
2. Impose clear terms of reference
It is crucial to ensure that there is a clear scope for any investigation to be conducted, including the objectives of any such investigation. The key objectives will almost always be: to establish facts, to determine whether there has been any misconduct and to identify remedies if so. Carefully considering and recording the scope and objectives of an investigation at the outset will help to focus the investigation and provide a structure for those conducting it. Moreover, if the investigation is required, by reference to applicable policy or regulation, then refer to that policy or regulation and ensure it is properly followed.
3. Ensure there are timeframes in place
In order to guarantee that the investigation stays on track, it is useful to put in place timeframes for key milestones and a deadline for the final report. It may be necessary to amend these throughout.
4. Put in place an independent investigation team
Ideally, an independent committee will be appointed to oversee the investigation. Those implicated in the conduct being investigated or who may have a conflict of interest should not be involved with the investigation to ensure it is conducted objectively and fairly, and to reduce the potential for criticism regarding the investigation process.
5. Manage documents well from the outset
Make sure that all relevant employees are told to retain documents – both hard copies and electronic versions. It is also worth considering whether to photocopy original documents and back-up servers to ensure these do not get lost.
6. Conduct interviews with care
While those conducting the investigation should carefully plan and consider any questions they are to ask interviewees in advance, they should also have the flexibility to recognise and respond to any developments that arise during the course of interviews.
Many interviewees will be nervous, even if they are not the ones implicated in any wrongdoing. Ensure that they are put at ease.
Finally, ensure that accurate records of all interviews are taken for future reference.
7. Consider confidentiality and privilege
Confidentiality is absolutely vital in protecting reputations and shielding the investigation from bias. This should be emphasised to those taking part in conducting the investigation and anybody interviewed as part of it.
Similarly, it will be crucial to protect privilege to the greatest degree possible – be wary that documents will not be protected by privilege in investigations simply by virtue of having lawyers involved in their production. Please see our article on preserving legal privilege in investigations for further tips.
8. Utilise external experts
Realise that an internal investigation need not always be wholly ‘internal’. It might be cheaper and more time efficient in the long term to hire legal teams, forensic IT specialists or forensic accountants, who can offer up particular expertise.
9. Consider employment law and data protection law
The duty of care owed by an employer to its employees extends to investigations. Employees should therefore be treated with care and respect and provided with adequate support during the process.
Moreover, data processing conducted during internal investigations must be carried out on a valid legal basis, which will in turn depend on the purpose of the investigation and the nature of the data.
10. Prepare to effect necessary change
Be amenable to the results of the investigation and any consequential recommendations for necessary improvements. Consider in detail how internal changes are to be implemented to ensure that the risk of repeating damaging practices or negative conduct is reduced going forwards.