Spotlight on managing overlapping workplace investigations

Workplace investigations can become particularly difficult when the same incident triggers more than one investigation. An issue which starts as an HR matter may also raise health and safety concerns, attract the attention of a regulator or, in the most serious cases, involve the police.
So, how should employers manage those different processes? In this Spotlight programme we’re looking at how overlapping investigations should be approached, the legal and practical risks that can arise when they run in parallel, and what happens to an employer’s own investigation when an outside authority becomes involved. We’ll hear from health and safety lawyer Zoe Betts, employment lawyer Sarah Munro, and from discrimination expert Kate Dodd, who leads Pinsent Masons’ Employment Plus team.
The starting point is to understand that different investigations may be looking at the same incident for very different reasons. I asked Zoe if it’s common for employers to run parallel investigations after a serious accident: 
Zoe Betts: “Yes, that can happen quite often. It is almost inevitable that certain incidents of certain severity will give rise to both HR and issues and health and safety issues and very often the investigations into those different issues do give rise to different investigations because they've got different purposes. So generally, a health and safety investigation needs to start pretty quickly, because what you're looking to identify are the immediate, the underlying, and the root causes so that, most importantly, the employer can take action to prevent a recurrence. An HR investigation is no less important, but that's looking at more of the individual's conduct and their compliance with corporate policies, procedures and training. So there can be circumstances where an investigation can be joint. An investigation of that might be wearability of PPE, especially if somebody's got disabilities. There, I would suggest, that should be an HR led investigation with input from health and safety because they understand issues surrounding PPE and the legal requirements, but where you've had a serious workplace incident, and especially if the regulator is involved, the Health and Safety Executive or, at worst, the police, I would always suggest that the health and safety investigation needs to take the lead, and it needs to start very quickly. You need to get that underway so that you can understand what's happened, prevent a recurrence, but most importantly you might be thinking about doing that under legal privilege and that's not something which is necessarily first and foremost with an HR investigation. So what I'm saying is it's often inevitable that there will be parallel investigations and that has to be managed quite carefully.”
So, where HR and health and safety investigations are running alongside each other, the challenge is not simply deciding how they should be structured. Employers also need to think carefully about how those parallel processes interact, particularly when it comes to witnesses, evidence and legal privilege. So what are the legal and practical risks employers need to be aware of? Sarah Munro:
Sarah Munro: “It’s a good question because that often happens that individuals will be in, for example, a redundancy process, and so you're going through a redundancy process, consulting them, meeting them about that, and then they raise a grievance about, maybe, the manager that selected them for redundancy. You then have to investigate that grievance, but it might overlap with some of the discussions you've been having in the redundancy process, and some of the evidence might be similar, and it becomes quite complicated to manage because what you need to do is make sure you follow two fair processes, but it can cause confusion because an individual might give evidence in one process that's slightly different from the evidence they give in another process, and you end up with competing and potentially very different accounts. Now you would hope that wouldn't happen, but that's why it's really important for employers, where you have two processes, to be coordinated. You have to maintain the independence of the individuals doing the separate processes, but there should be some coordination where you can ensure that you're not tripping yourself up on a procedural element to a case, so it is really important. Again, it goes back to something I've talked about before, which is triaging and making sure that you're scoping the relevant processes out properly at the beginning. The other thing to think about when we're talking about collating evidence is making sure that you are preserving evidence appropriately, that you're retaining it according to data protection rules, that you are also ensuring that you're not inadvertently sharing evidence from one process to the next without getting appropriate consent, and also ensuring that you don't compromise anybody who's trying to maintain independence. So, again, it goes back to the planning and the scoping stage to make sure you've got a clear process in how to deal with evidence that may come up in parallel investigations. One thing that I am often asked about is when can we have a legally privileged investigation? Something I have been involved in quite recently was I was tasked by a client to hear a grievance appeal. So I was effectively stepping into the shoes of a person in that organisation who would have normally heard the grievance appeal, but because of the seniority of the individuals involved, and the complex nature, they wanted it to be somebody external. I was hearing this grievance appeal, but during that grievance appeal there were certain cultural issues and other points that weren't really necessary to go in the grievance appeal, but I thought were helpful for the stakeholders to hear about. So I then prepared a separate legally privileged report for the stakeholders, drawing out some of the points that I had identified in the grievance appeal, and that report, because it was me effectively giving some legal advice, was legally privileged, but my report from the grievance appeal was not because it was fact finding and it was something that was going to be given to the employee as part of an internal process. So that's a really important distinction that even if I'm a lawyer doing an investigation for a client, that does not automatically mean that that investigation is legally privileged. There will be situations where I would do a legally privileged investigation, but there will be many where I am doing a fact-find investigation, like a grievance appeal, that does not have legal privilege attached to it. So again, it goes back to my favourite phrase, that it is so important at the beginning to scope out an investigation and make sure you have clear parameters as to who is doing it, whether it's legally privileged or not, what evidence you need, who you need to speak to, and to have that triage and scoping part of the investigation as really the starting point to give you a sound basis for a really strong investigation that protects the business and also, hopefully, gives some comfort to the individual who has raised the complaint.”
Those issues become even more difficult where the employer is not the only body investigating. A serious incident may also involve a regulator or, in some cases, the police, leaving the employer to decide how its own internal process should proceed alongside that external investigation. So how should employers approach that situation. Kate Dodd:
Kate Dodd: “It’s a great question whether that external investigation is a regulator, such as the Health and Safety Executive, or whether it is the police, an employer needs to be really careful about what it does around its own internal investigation. You can't simply just say, right, we're going to leave it to the police to deal with and we'll follow up thereafter because, actually, the thing to remember there is it's a different burden of proof. So you deciding whether something has taken place, I don't know an assault or something of that nature, in a workplace situation, you're looking at did it happen on the balance of probabilities? In a police investigation, they're going to be saying, can we prove beyond all reasonable doubt that a criminal action has taken place? So, it's very important not to cut across what's being done externally, but also not just to simply say, "well, the police are involved and we don't need to do anything more.”
Joe Glavina: “When HR becomes aware of potential police involvement how should they respond? How does affect the internal investigation, if at all?”
Kate Dodd: “So where there is police involvement or potential police involvement, HR should immediately make contact with the police and talk to them. I do have some clients who have got an absolute kind of no-no. As soon as the police are involved, they stop their own investigation and they wait for that to continue and to be resolved before they take it up from an internal HR perspective, and that is depending on what kind of business they are in. Sometimes it's needed for regulatory purposes, for example. However, with most organisations, I would say, you don't need to stop your own internal investigation and, indeed, doing so without thought can actually leave people being suspended for months on end, for example. It can lead you into a situation where evidence gets lost, memories fade, people leave, and then you've got a real problem with your own internal investigation when that gets picked back up. Therefore, my advice is: speak to the police and say to them, we would like to continue to run our own investigation, is that okay? What I have found nine times out of 10 with my clients is that the police will say, "Thank you for letting us know. Yes, you can do”. In some situations, they'll say no, but it's rare. Yes, you can do, but please make sure you preserve everything because often the police will come calling - and I've seen this many times - the police will come calling to the HR team to say, "I know you did your investigation. Please, can we have a copy of that? Can we have copies of all the evidence that you gathered, the documents, the emails, the CCTV?” and you then can be a really useful part of that police investigation, obviously making sure you're complying with all your data privacy requirements, etcetera. Talk to your teams, talk to your lawyers, but there is no need in most circumstances to simply down tools. What you do need to do, of course, is to cooperate with the police and then to run a very carefully planned investigation under which all of that evidence is preserved very carefully.”
Joe Glavina: ““Where several investigations are running at the same time it can be a challenge to manage them so how should HR decide which takes priority?” 
Kate Dodd: “We’re often asked what should take precedence, and it's going to be different in every circumstance. You might have an accident at work where there's been a fatality, or a serious injury, and in that situation often the health and safety investigation will need to take precedence because it needs to be done at speed, but there should be real communication there between HR and health and safety. There should be a point of contact who's coordinating those different investigations and mainly, also, to think about it from the employee's perspective because it can be quite hard for them to be asked the same questions all over again, especially if they don't understand why. You know, why are you coming back to me again? I've given all this information already, etcetera. So being really clear about who's doing what and the order it's going to go in, and then just telling people what to expect. My one takeaway for all of this is to let people know what to expect and update them. You know, if you say, "Well, it'll be a couple of weeks” Right, okay, a couple of weeks have passed, update them, let them know what's happening because uncertainty is so stressful, particularly if you've got somebody who's been involved in a traumatic event it can really add to the trauma of that situation. So, regular, reliable communication and contact, I think, is absolutely key.”
So, the key message is that where investigations overlap, careful coordination is essential to ensure the different processes work together without creating additional risk. Kate and the Employment Plus team are currently working with a number of clients on complex workplace investigations, including cases involving parallel or external investigations. If you would like help with this, please contact Kate in the first instance – her details are there on screen for you.