If you're an employer dealing with an internal workplace
issue, you may be considering the question of whether it's best
to engage an external investigator. So what's the right move?
The best approach really depends on the circumstances!
The level of investigation and the resources that should be
devoted to it, will depend on how the behaviour comes to your
attention, the nature or seriousness of the behaviour, and the
The benefits of an internal investigator - typically your HR
Manager or another member of your management team - are that:
They know how your company operates, its processes and its
They have intimate knowledge of your company's policies and
It's a cheaper alternative than engaging someone
The benefits of an external investigator are that:
It allows your HR Manager to be able to attend to their
ordinary daily tasks (conducting an investigation can be very time
It's easier to combat an accusation of bias or conflict of
They have experience in investigating workplace issues
There is the potential to claim privilege over the
investigation report by engaging lawyers to conduct/manage the
investigation on your behalf.
Legal professional privilege – what is it?
You can seek to claim privilege over communications between you,
an employee, and your lawyers, if the main purpose of those
communications is for lawyers to provide legal advice, or if the
communications are in anticipation of legal proceedings.
Unfortunately, it's a little trickier than just instructing
a lawyer to engage an investigator. In order to establish privilege
over the investigation report and maintain it the following
recommendations, at the very least, should be adhered to:
The letter of engagement from the lawyers to the investigator
should clearly indentify that the purpose of the investigation and
report is to assist them in the preparation of legal advice
All communications with the investigator should be through the
lawyers (unless purely administrative – for instance,
Distribution of the report should be limited
Anyone with access to the report must treat it as
All communications relating the investigation and report should
be marked "Privileged & Confidential," including the
Why would you want to claim privilege over an investigation
As long as the privilege claimed over an investigation report is
maintained, you can refuse to reveal the contents of the report to
an employee or any other person or body that may be interested in
Circumstances that might mean that you want to protect the
content of a report occur when:
There are several employees involved in the investigation
and/or a mix of allegations
There are issues surrounding the disclosure of the identities
It may assist with ongoing employee relations, particularly if
it's likely to contain inflammatory statements
You want to protect confidential company information (for
example, sensitive commercial information) that may be referenced
If you're faced with having to investigate a workplace
matter, give Coleman Grieg's Employment Law team a call so that
we can help you strategise the best way to proceed in the given
circumstances. Getting things right from the start can avoid costly
mistakes which may create further problems for you to have to
manage in the future!
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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When employees engage in out-of-hours misconduct, it can negatively affect the reputation of the employer.
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