Q. When should an employer consider hiring an external investigator?
Various situations arising in the workplace can trigger the need for an investigation – whether it’s discrimination or harassment, bullying or abuse, inappropriate use of the internet, theft or fraud, statutory violations, or allegations of just cause.
In these situations, having an employer deal directly with the problem may not be the best approach – informal discussions can easily breakdown and basic investigative steps may be overlooked, making matters worse.
An invaluable skill for any employer is recognizing when a formal investigation by an external investigator is appropriate.
What are the advantages of hiring a lawyer as an investigator?
The Allegations are Serious
Serious allegations of employee misconduct can carry significant consequences. The reputations of the individuals involved are often at stake given that accused employees may be at risk of losing their jobs or facing criminal prosecution. Therefore, it is not uncommon for an employee to insist upon representation by his or her own lawyer in such cases. Also, the more serious an allegation (especially one that may amount to criminal conduct), the more vigorously lawyers, arbitrators, courts and tribunals will scrutinize the investigation. Not only will the allegations themselves be closely examined by lawyers and adjudicators, but the investigative process that was followed will also be dissected. If the investigation was flawed, employers can be exposed to legal liability.
When allegations are made against an employee, the employer’s business and reputation may be on the line. For instance, a violation of law or policy by an employee can expose an employer to civil or criminal liability. In regulated industries, an employer can potentially lose its operating license, or have terms and conditions imposed on it. Employers can be required to take corrective action or pay considerable fines as a result of employee wrongdoing.
When the stakes are high, employers may need a lawyer-investigator who is trained and skilled in identifying the pertinent issues and gathering the relevant evidence. A lawyer will maintain control of the investigation, provide an objective assessment of the situation and make helpful recommendations to minimize potential legal liability and losses to business and reputation. When allegations of employee misconduct can carry serious consequences for an employee or the employer, lawyers can often be relied upon to conduct fair and thorough investigations capable of withstanding intense scrutiny.
Lack of Training and Experience
Investigating is not an easy task and employers can lack the necessary training and experience to conduct neutral investigations. Cases can be complex for many reasons. An investigator can run into a variety of challenges. Aside from basic investigative techniques such as interviewing witnesses and gathering relevant documents, an investigator must be adequately trained and experienced to impartially evaluate the evidence and reach a conclusion supported by that evidence. In most cases, the investigator is unlikely to uncover the proverbial “smoking gun”. Therefore, he or she must be skilled in assessing credibility and weighing corroborative, circumstantial and similar fact evidence. The investigator must be able to figure out when forensic expertise is required to gather, preserve and analyse evidence. In addition to evidentiary issues, the investigator must know how to appropriately deal with unexpected hurdles such as uncooperative witnesses, possible retaliation against a party, privacy issues, and third parties seeking to meddle in or control the investigation. Lawyers who deal with workplace investigations as part of their legal practice are experienced in dealing with these more convoluted and thorny issues.
Dealing with the Media
Scandalous allegations such as those involving discrimination, harassment or abuse often attract unwanted media attention. In these cases, investigators must ensure that information regarding the investigation is not prematurely disclosed to the public or they risk compromising the integrity of the investigation. It is not hard to imagine leaks of information in cases where an incident is being investigated by management within the workplace. Having a lawyer who is accustomed to dealing with the media can help to minimize the information which is disseminated both inside and outside of the organization. The lawyer-investigator can also act as a “buffer” for the employer who may be able to avoid answering tricky questions from reporters if the organization is not directly involved in the investigation.
Maintaining a privileged investigation is one of the most important reasons to hire a lawyer as your investigator. The fact that an investigation is conducted by a lawyer does not automatically mean that privilege (or confidentiality) attaches to the investigation. However, in situations where an employer wishes to conduct a privileged investigation, hiring a lawyer as the investigator may be the only way to help to protect privilege. The lawyer-investigator can advise employers on how the investigation should be structured and planned in an effort to protect privilege. The lawyer-investigator can also conduct investigations while at the same time provide their employer clients with legal advice, ensure that communications with them remain confidential, and prepare for anticipated litigation. Although the law does not guarantee that a workplace investigation conducted by a lawyer is privileged, privilege is far more likely to apply to a lawyer’s investigation than an investigation undertaken by an internal investigator.
Investing in a lawyer to act as an investigator can actually help employers simplify and save money in the long run. When litigation is commenced by a complainant, a comprehensive investigative report, if it is favourable to the employer, can be used to shut down legal disputes at an early stage. Adjudicators can rely upon the findings of a sound investigation to swiftly determine issues of employer liability. As well, investigative reports may be accepted into evidence by adjudicators avoiding the need to call direct evidence from witnesses. Lawyers who conduct workplace investigations know how to formulate an investigative report that is going to be accepted by a court or tribunal in order to streamline litigation. This will save employers the considerable time and expense of a full-blown hearing.
As you can see, there are many benefits to using a lawyer as your investigator. To learn more about this topic, click on the link to my article or feel free to contact me.
The issues raised in this video are for information purposes only. The comments contained in this video should not be relied upon to replace specific legal advice. Viewers should contact professional advisors prior to acting on the basis of material contained herein.