Workplace Investigations: Do You Need an External Investigator?
When serious disciplinary allegations, employee complaints or whistleblowing concerns arise, the first question a business will need to consider is how best to conduct a thorough and fair investigation.
Appointing an internal investigator will often be a sensible solution, provided that they have the necessary skills, training and time to collate and analyse the relevant evidence with a degree of rigour. However, there are circumstances where an employer would be well-advised to bring in an independent external investigator.
Whoever is chosen, they will typically need to conduct a thorough fact-finding exercise and make recommendations on next steps (which may include, for example, bring allegations forward to a formal disciplinary process, workplace mediation, additional training or changes to internal policies).
When Internal Investigations May Be Suitable
Minor Issues: For some situations, like alleged minor policy breachesor interpersonal conflicts, it may be disproportionate to bring in an external investigator where there is existing in-house expertise who can establish the facts in line with your internal procedures.
Clear-Cut Facts: When the facts are straightforward or uncontested and the investigation does not require a time-intensive review of documentary evidence or lengthy questioning of witnesses, it is likely to be easier to appoint an internal investigator (provided they are unconnected to the relevant events and there are no other factors which might impinge on their impartiality).
Internal Expertise: If your organisation has managers, in-house lawyers or HR professionals who are trained and experienced in handling investigations (and they have sufficient bandwidth), there will often be no need to outsource the investigation to an external third party.
When An External Investigator May Be Appropriate
Serious or Complex Allegations: Allegations of harassment, discrimination or serious misconduct or sensitive whistleblowing complaints often benefit from external investigation to ensure impartiality and thorough, independent consideration of the relevant facts.
Conflicts of Interest: Where the allegations involve a senior manager or someone who might otherwise be appointed to conduct an internal investigation, an external investigator safeguards the process from perceptions of bias or undue influence.
Specialist Knowledge: Some investigations require specific skills (such as analysing conflicting evidence from multiple sources or IT forensics) that some organisations might struggle to resource internally.
Limited Internal Resources: Smaller organisations or those facing multiple investigations may lack the management time or expertise to conduct them effectively in-house.
Reputational Risk: An external investigation can assist in helping an organisation protect its reputation, by demonstrating that the organisation has acted quickly to reassure the workforce and external stakeholders that the issues are being looked into independently.
Factors to Consider When Choosing
Complexity: Assess the nature of the allegations or issues being raised and the likely sources of evidence (witness, documentary or other forms of electronic or hard-copy data).
Expertise needed: Determine whether you have the right skills and experience in-house.
Impartiality: Can an internal investigator conduct a thorough, impartial investigation without any actual or perceived conflicts of interest?
Capacity: Do you have the time and resources to dedicate to a thorough investigation?
Cost: While instructing an external investigator will involve incurring professional fees, this should be weighed against the saving in management time and internal resources, the potential cost of reputational damage and the legal risks arising from an investigation that is perceived to be flawed.
Expert Guidance Makes the Difference
Kilgannon & Partners specialises in workplace investigations, conducted by highly experienced employment lawyers. We can help you determine whether an external investigation is right for your case, or guide your internal process to ensure it aligns with best practices.
Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.
We offer a range of services, so please contact our friendly customer services team to discuss further via hello@kilgannonlaw.co.uk or 0800 915 7777.
This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice 13.07.24