Employment mid-year series: Protecting your investigation outcome from challenge

Jane Fielding:  Good morning everyone.  I am Jane Fielding. I am head of the Employment, Labour and Equalities team here at Gowling WLG in the UK and I am delighted to welcome so many of you to this, which is the third in our series of four webinars, which we do half way through the year, to take stock of things we think you need to know about in the world of employment law. 

Little did any us think a year ago that we would still be doing these remotely, but here we are.  Life goes on and for employment lawyers and for those of you advising on helping on employment law, whether you are HR or lawyers or something else in your organisation, then that means that the rich tapestry of human behaviour continues as well.

Some of that, of course, needs investigating and so, hence the topic for our webinar today, which is 'protecting your investigation outcome from challenge'. 

A lot of the time when we are asked to be involved in a situation and the investigation has already been done it is a situation which has been made worse by the investigation, how it has been done and the court outcome.  Some are fantastic obviously and they are the best ones to deal with in a way, but if they have not been done well, it is really a case of damage limitation and doing what we can to help you make it better, whether that is at the appeals stage or at a claim stage.

So, what we wanted to do on this webinar today was to help give you some tips and understand the importance of planning and then proper implementation.To make sure that if you are in the situation where you are investigating some of that rich tapestry of human behaviour, you are more in the latter camp with a strong and robust investigation outcome report that you can rely on and is defensible, if challenged.

So, our speaker today to help you with all of that, is Simon Stephen.  He is a legal director in our team and his experience is unique in that he has many years as a lawyer, as an employment lawyer, but he took a break from our firm, having trained with us, to go and work in an employee relations role in an investment bank before coming back to us a couple of years later.

So, not only has he sort of devised proper investigation policies and actually done investigations himself, he has also supported many others in doing different types of investigation in that role.

So Simon is going to talk for about 25 minutes.  At the end, before we close at 11.40, we will have ten minutes for questions.  We will try and get to as many of your questions as we can.  If you want to ask one you need to find the Q&A tab which, for those of you who are not familiar with zoom, is at the bottom of your screen in the middle.  If you type your question in there, I will be keeping an eye on those as Simon speaks.

You will not be …. what is the word … you can ask an anonymous question, but if you ask it anonymously we will not be able to come back to afterwards if we do not get to it in the session, but only Simon and I can actually see the questions, so do not worry about posting it with your name or the name of your organisation.

If you have got a tech issue, hopefully you will not, but if you do also please put a question in the Q&A and Lucy Strong, who is helping us with the tech today will pick that up and try and sort it out for you behind the scenes.

I will flag this again at the end, but you will get an email after the webinar which attaches a questionnaire with a feedback form.  We would be really grateful if you fill that in.  We do read them and take them into account, so if you have a couple of minutes to do that that would be great, but I will mention that again at the end.

So, I will switch myself off and I will hand you over to Simon.

Simon Stephen:  That is great, well thank you very much for the instruction Jane, I do not think there is anything else I can add to that other than to say welcome everyone, thank you for joining and without further ado, as they say, we will crack on because there is quite a bit I would like to cover with you today.

So, as Jane said the topic is protecting investigation outcomes from challenge, and what I would like to do to help with this is first of all just run through general reminder really about the risks of investigations going wrong and general principles to bear in mind when carrying out investigations. 

Then I want to go through some particular kind of pinch points, if you like, and issues where in our experience we are seeing the biggest challenges and the biggest scope of errors.  If that is selecting an investigator, getting the right person for the job and then planning and scoping and using a terms of reference, we will talk through kind of practically using those and then some particular topics.  

There is using privilege properly and looking about how data protection can be dealt with and then wrapping up together with cooperation communications- how do you get people to actually cooperate and engage with investigation?

I think the big takeaway I would like people to take away from this is first of all, not to be scared of investigations.  You hear a few horror stories but actually with proper process they can all be avoided.  But also a big part of getting investigations right is to make sure the integrity of the process is protected and you have people on board and cooperating as much as possible.

So, the first thing I want to do is just a brief reminder of the risks.  A lot of these will hopefully be self-evident, but if you get an investigation wrong, or with people challenging it, they do not buy into it and you have not got that engagement, it of course undermines that investigation itself which then has a knock-on effect with any further processes that may ensue.

If you have got a disciplinary process and you have an investigation that is a bit faulty, it is not going to help with that process.

I think there is also an added risk that as people go through an investigation process and they are unhappy with the decisions, they want to challenge it or they do not understand what is going on, it has a big risk of increasing other processes that are going on.  So it may be that somebody raises further complaints that actually you have not done X, Y and Z and that means that actually I think is a detriment for blowing the whistle or it is a further act of discrimination.  So it can have that big impact on actually increasing workload.

It could increase the risk of litigation if processes do not go right.  Of course it may make people more litigious and it could also have the impact of undermining decisions that are taken on the back of the litigation.

But I think what we are seeing more and more of in terms of risks is publicity risks, and that is both internal and external.  The external publicity is something which happens, you can go on the slide, we have got the headlines which you may see, and that is always going to be a risk.  Indeed, I have got an investigation on at the moment where every day I check the news just to see if I am mentioned in it because of what we are looking at.

But actually, I think they can be managed through careful comms.  One of the big risks we see is the internal publicity.  Investigations not being able to deal with challenges, not being robust enough, can lead to internal issues with the people involved, with trade unions, but also, ultimately, it goes up the chain to the board and the exec. 

If the exec and the board are those who have commissioned the report and it is not going right then it can lead to quite a bit of internal politics and what we are seeing is investigations really are a trigger point for internal politics issues.

Ultimately, it comes down to the question of value for money.  If you spent a lot of money on lawyers or if you spent a lot of time in an investigation and it does not do what it needs to do, there are big questions that are going to be asked.

I think it is important to bear those risks in mind for the context of any investigation, no matter how small or large.

So in terms of protecting investigations from challenge, I always think and I always advise, and indeed myself when I am doing them, it is important to go back to basics.  Go back to the general principles behind the investigations.

I have got on the slide there, under the magnifying glass, four bits of what I call the framework jigsaw, if you like.  The starting point is making sure that when you are doing an investigation you have up to date internal policies that apply and that are being applied and that people understand what they are and are operating within them.

It is such an easy challenge for someone to say 'I am not happy with this investigation' because you have not complied with an internal policy.  That then distracts it detracts and takes a lot of time away and that is where you can lead to these further processes I mentioned.  Somebody, for example, might say oh you have not got back to me within the five days your policy says you would.  I think that is the detriment for me having blown the whistle.  And you are losing the control, you are losing the trust of people involved.  So very important to make sure internal policies are kept in mind.

Linked to that is the ACAS guide to workplace investigations.  This is a relatively lengthy document, it is on the ACAS website, it is not binding but it is a guide and I think it is really good to make sure that anyone involved in investigations goes back and has a read of this to remind themselves of general principles.  It is good, it is informative, a lot of it is common sense but also it is useful to be able to say to someone when rebutting a challenge in the ACAS guide, we have looked at this and it says X, Y and Z.  And it is not a bad thing to signpost in an investigation report to show that you have taken it into account.

And two other key general principles which I think really have to be borne in mind throughout the whole of an investigation, the reasonableness of decisions and the process and timing.  Now reasonable, and obviously no definition, and it is a word we are all familiar with in the employment sense. I meant there is no definition in the employment sense but in an investigation in order to keep engendering the trust and to get people on board, it is very important to make sure that they understand why decisions are made. 

They may not be happy with them but if they can understand them and if they got legal advice that says 'well actually that is fair enough' it really helps you to carry on.  And in terms of investigations when you are looking at this issue of reasonableness, what you are really looking at is that all the decisions that are taken, are taking into account the needs of the organisation, the needs and desires of the investigator and also of all those involved. Consider all of those in the round and come to a balanced decision, which can then be documented and set out for everyone to see.

Then finally, the timing is the last bit of the jigsaw.  We see challenge of the timing all the time in investigations, not least in doing them, because let us be frank, investigations often take longer than initially planned or expected.  And that is not just me making an excuse for diary management, there are things that crop up all the way through.  So, it is really important to make sure that timing from the outset, you have a realistic timeframe of when the investigation is going to be complete and that is kept up to date and under review all the way through and people are communicated with. 

I think if you bear those particular policies, the reasonableness of decisions and timing in mind with every decision you will make you are going to give yourself a good foundation on which to carry out your investigation.

One of the first bits though in terms of making sure you are protected from challenge once you have got all these general principles in mind is making sure you have the right horse for the course. Getting the right investigator is absolutely fundamental for making sure that the process is done properly and the output is what you want and is in a way that can rebut any challenge.

I have put on the slide, five issues to consider when you are selecting an investigator and you will notice in the title we have taken for granted that the investigator is going to be independent.  It is absolutely key that independence is preserved for an investigator right from the initial decision to bring them on-board, all the way through to how they are being used during the process. 

That independence- that conflict management must be borne in mind all the way through.  A big area we see is that people say I do not think this investigator is impartial, is independent.  And that can come up because it has not been future proofed.  So when you are thinking about the investigator, think about where the investigation might go, think about who might be involved, think about the areas which might be uncovered and would any of that impinge on the investigator's independence.  As Jane said, the key importance of the planning.

Once you are happy that you do have an individual who is sufficiently independent and you have got a process in place to manage any potential conflict, there is then the five points there to be considered.  I think it is really important to think of these all together because what you are looking for is the best available person with the best combination of all these aspects.  So there is no one answer. 

But breaking them down, you want somebody who has the right role.  Many people who do investigations are managers, they might be in HR or indeed a specialist unit like I was when I was in-house.  But you need to look at how that presents , and an example that comes to mind is if you have a manager who might have the experience and knowledge and is available doing investigation, but the issue that is being looked at is really an issue with management. How is that going to look in terms of that investigator's credibility if they are perceived as part of the problem?  So, are they the right person to do it, is it the right horse for the course.  So, you need to think that through carefully about how that looks.

In terms of experience and knowledge, obviously there is a wide range of investigations which need a wide range of experience.  So, just making sure that the person you are looking at has the specific experience for the specific type of investigation you have in mind.

Obviously if it is a disciplinary investigation for something like somebody punching a manager on the shop floor, you may not need someone with that much experience.  But if it is a complicated grievance investigation which needs experienced handling of difficult individuals, then you are going to look for somebody different. 

And as part of that you need to make sure they have the right knowledge base in which to actually be credible in the area they are investigating.  Here, an example could be, if you are looking at trading misconduct or trading misuse.  You need to have somebody who is credible in that space because otherwise anyone involved in that investigation is just not going to engage, is not going to see it and it will be a ripe challenge, but actually the outcome is not worth the paper it is written on because the investigator does not know what they are talking about.  I am paraphrasing an individual I dealt with many years ago there.  So you need to make sure that they have that right knowledge base.

But of course, you cannot always guarantee they have all the specific knowledge so it is very important to make sure that if needs be there is an SME on hand to provide input in that.  And this is part of the planning so do not think they have to have expert knowledge, just enough to be able to have credibility and to do their job.

And, of course, then you need to think about whether the right investigator is going to be an internal investigator or an external one.  I think it is a decision to be made at the outset.  There is no right or wrong answer on that, a lot of it will be depending on how much you want the investigator to be at arm's length.  And that is where we may come in as external lawyers or indeed perhaps it is an issue of wanting to look at privilege.  But you need to think about who is best placed for doing all of those things and ultimately somebody who is also available.  A big issue that can come up is where investigations drag on, linking back to the timing point and then investigators are no longer available or have gaps which then can have a big impact.  So, as I said you want the best combination of all these people.

Once you have selected your independent investigator, it is really important to make sure that the investigation is properly planned and scoped.  I am not going to go into too much detail about that planning and scoping process because it was something we covered in a lot of detail in a previous webinar I have done, which I think we still have on our website and can circulate as needed.  But it is a fundamental part of getting an investigation right, to make sure that you have planned how it is going to happen.  And as part of this planning you can often do a lot of forward thinking about where the challenges, where the issues may come up.  And I have broken this down into three key areas.

There are the materials which you are going to use, for which I think witnesses and individuals can be included in that.  You can plan and think who is it that is going to be interviewed.  Are any of these actually going to be difficult, are there health issues, are there people we know who are a bit difficult or we have a history of not engaging, how can we proactively plan to manage that.  So you can do all of that at the outset.

And then likewise, as Jane said in making sure that the report is something that is actually fit for the purpose you want.  You need to plan what it is that you want out of it.  What is the report supposed to achieve and how do you want it to do that.  It may be that you spend a lot of money and time on getting an investigation and you end up with a 10 page investigation report.  That is not going to help anyone because it is not going to show that you have got value for money. 

But on the flipside, you may use the report to report to a sub-committee of the board who you know do not read anything that is over 10 pages long.  So, if you get an investigation report that is 80 pages long that could be the best singing and dancing investigation report ever that is going to put you in a difficult situation and leave the investigation open to internal challenge because you cannot use it in that sub-committee. 

So, this part of the planning about how that report is wanted is really key.  But I think also planning what happens post report.  I think with a lot of investigations, people once they get the report they then forget about planning those next steps, what happens.  Who is going to see it, how is it going to be used, what is it going to be used for.  All those things need to be thought out right from the outset because you can build that into the planning.

And then where you get to in terms of those planning, you get into what we call the Terms of Reference.  Now, I absolutely love Terms of References in investigations.  They are such a key part of any process and a key part of protecting the outcome from challenge in terms of the process followed.  Because what the Terms of Reference does, it is a living, written document, it is something that can be adapted as it goes through to deal with issues.  But the Terms of Reference really set out the rules of engagement for the investigation.  What is going to happen and how is it going to happen. 

So all the issues that you have thought of in terms of the planning and scoping and the issues that we will come onto shortly in terms of privilege and data privacy, can all be dealt with in the Terms of Reference, so it is very clear, in many ways it is a bit like a contract between the organisation and the investigator setting out how that all is going to take place. 

And the Terms of Reference will also include clarity on the issues to be investigated and particularly the issues that are out of scope.  Because then that scoping is very clear so everyone knows exactly what it is that is in scope and is what is out of scope.  And as we will come onto, that scope is of course the issues being investigated but also the scope of how the investigation is going to be carried out, where do we go in data protection, what do we deal with issues of cooperation if people do not engage, all these kind of things together with a communication plan as well can all be dealt with in terms with the Terms of Reference.

The Terms of Reference can also set out in as much detail as is needed how the report is to be presented, how it is to be set out, the format, what it is that people want from it in the long term to make sure it is absolutely clear from the investigator what the ask is.  I do not think I can ever express enough how important this Terms of Reference document is and we are still surprised to see these days that there are quite a few investigations done without this formal Terms of Reference at the beginning.  

I think it is a fundamental part of the framework.  And we say it is a really good tool to protect from challenge because it is a bit like the Alamo, it is what you fall back on if there are any issues and you can use it to forward plan any of the particular challenges that you may see coming up in the future.

So, I have mentioned privilege, which is the next issue I want to come onto.  And here on the next few slides I want to pick up some particular thorny issues that come up in investigations.  And I think privilege is a great tool that can be used to protect investigations.  Legal privileges are fundamental human rights but it does need to be treated very carefully.  As I said, it is a very important tool for protecting investigations as it can deal with the thorny issues behind the umbrella of it and with its protection.

When thinking about privilege you need to think very carefully right at the outset how privilege is going to work, particularly if there is going to be any issue about the status of the investigation The investigation being a privileged document and whether or not you are actually going to use privilege and how you do it.  Because privilege is useful because it can help avoid creating unhelpful and potentially inaccurate documents that you are later obliged to disclose to third parties.  It can also help to avoid inadvertently waiving privilege over documents. 

But privilege will only apply in certain circumstances and there are two up there on the slide.  The first is legal advice privilege and this attaches to confidential communications between a lawyer and the client for the purpose of giving and receiving legal advice.

The second is litigation privilege, which is confidential communications between a client and a lawyer or indeed between a client and a lawyer and a third party created where the dominant purpose is effectively litigation that is pending or in contemplation.

And those two are very different and I think you need to then fall back onto what is the purpose of the investigation-what are we doing and will privilege apply to it?  And the circumstances you see litigation privilege attaching to investigations are often ones where they are regulatory, you may have notification from the FCA about an issue or where there is potential criminal prosecutions. 

In the ER context, dealing with disciplinaries and grievances it is very difficult to see how the privilege will apply to make the investigation itself be privileged.  But that is a discussion that needs to be had right at the outset as to what the investigation is, under what level it is going to be looked at and where privilege fits in it.

Once you have made that decision- and we will work on the basis that it is an open investigation because most of the ones we deal with actually are, you still need to work out how privilege links in.  You need to be clear what is considered privileged and what is not and anybody involved in that need to be very clear as well.  You also need to make sure that it is very clear between the parties about what is privileged and what is not, to make sure that privilege is protected, there is not any inadvertent waiver of it.  And that is by having clear communications with the in-house legal team, with any lawyers, whoever is using it and making sure people understand.

And I think finally, even if the investigation is on an open basis, it is really important to make sure there is this access to privileged advice, to make sure that you can actually get the benefit of it.  Because what you want is to be able to deal with those issues under the umbrella of privilege and then go back to the investigator and tell them, using the communication plans, if there are issues that come up, the investigator might raise an issue about data protection or cooperation, things we will come onto shortly. 

You then need to be able to deal with that in a privileged setting in order to be frank and deal with those thorny issues, make sure you get things right and then you can feed that back on an open basis to the investigator to make sure your investigation then carries on as you wish.  The very important thing to make sure you have dealt with at the outset.

Another thorny issue that comes up in investigations is data protection.  Data protection with the GDPR and everything else around it is something that is more and more in people's minds.  People are much more aware of what their data protection rights are and we see this thrown up as much more of a challenge on a day to day basis in investigations.

It is often forgotten about in a sense at the start, or people assume it is ok until something goes wrong.  But I think in an investigation, as part of the planning and scoping, as part of the Terms of Reference built in with the investigator there needs to be a clear understanding on the grounds on which the process will collect and review data and making sure that in doing so people's individual rights are respected. 

And this means making sure, coming back to the point on internal policies, making sure that privacy notices and any policies there are on handling personal data are complied with and understood by all of those who are engaged in the investigation.  And it is also important to make sure that as part of the planning you are very clear about the limits on processing any special category personal data such as data around health or things like this.  Especially personal private data which may come up in any data gathering exercises you may come across personal emails or photos It needs to be very clear in the outset as part of the planning and scoping and indeed in the Terms of Reference what happens if you come across that so you can deal with it and make sure it is not actually processed as part of the investigation.

That is the material gathering aspect which is the first bit there on the slide, but there also needs to be forward thinking about how you are going to deal with people's personal data in the report itself.  An investigation report will of course deal with a lot of people's personal data but it needs to be part of the planning and scoping, part of the terms of engagement with the investigator as to how that data will be presented in the report itself and then how that report will then be used. 

For example, in an investigation I am doing myself at the moment, part of my Terms of Reference, my engagement is that I will maintain people's confidentiality, so we refer to people as Employee A, Employee B because that is a very key part given the context of the investigation.  All these things need to be in at the outset because what you do not want to get is a report which you then struggle to use because you have to redact it or you cannot share it because you are actually then processing a lot of data.  And that is why it is important as part of the planning to work out who is going to see the report, how it is going to work out, because then you can link in to these data protection needs as well.

And I think this is a good example of an area of investigations where the importance of getting legally privileged advice is really helpful because it is quite a tricky issue.

It is important to bear in mind the grounds you will have for processing the data relevant to investigations and making sure that people understand what they are.  This would be back to that point with the internal policies, making sure you have got up to date privacy notices and that those involved in the investigation understand how their data is going to be gathered and understand how it is going to be processed. 

In terms of the legal grounds for doing it, there is of course consent, but consent as you most likely know is not as easy as it used to be under the GDPR and the rules where we are now. What you are really going to be looking at is making sure you have a legitimate interest in handling it.  Which means that you have to make sure that you still do everything proportionately, making sure you have the clear scope, the clear boundaries about where you are going to go with it.  And you may also want to think about, as part of all of this, having a data protection impact assessment before you start an investigation, so you can demonstration you have thought about it all and you can come back to that core principle of being reasonable as well.

Because ultimately, where we see most of the issues and challenges coming out of investigations after the event, in the issues of a data subject access request which comes up.  I think there we see the issues arising out of privilege not being used properly, with correspondence which we would rather not have in play but is in play and all of these things come about.  But I think you can really protect yourself from challenge by planning all of this at the outset and bearing all these points in mind.

And the next area for challenge is what I have labelled as cooperation issues.  And I have put these into two broad buckets of health issues, where people may have genuine health issues or they say they have health issues which prevent their ability to cooperate or there are the issues where people you think are just evading and they just do not want to be part of it- for whatever reason.

Now in both of these, they can both be a big challenge for investigations because it can prevent people from actually inputting it and it create a big delay and it can cause big issues in justifying things internally about where you are.  So it is really important that they are dealt with promptly and dealt with robustly where needs be.

But I think if you go too fast and too hard on these you can really upset the balance and we talked about this issue of trust, engendering people, getting people on board.  So I think from my point of view, from a practical point of view, when dealing with co‑operation issues when you have got people who are not engaging, they say that they are unwell or whether they are evading, the key thing is to understand the issue is to make sure you promptly pick up the individual to understand it.  Because if it is a genuine illness, then you are going to factor that in as to how you deal and of course any health issues we would be looking to use Occupational Health and build in the issues of adjustments as well.

But even if somebody is being evasive, so if somebody does not have a health issue, they are being evasive and not co‑operating, the temptation is to go full on and kind of say "no, you have to do this, it is part of your contract".  I would counsel that actually a good way of protecting yourself from challenge in terms of kind of getting those people on board is to have some time to sit down and understand the issue with them and then work those communications round.

Because of course we often think about adjustments as only being relevant in the context of ill health or disability but actually adjustments can be made to anyone who is reluctant to engage in an investigation.  And I have got a good example at the moment of somebody, a witness who just would not engage with us at all and then once we engaged with them in terms of trying to understand it, we could unlock the reasons behind it and put in place adjustments behind them.  And now they are actually really helpful, useful kind of witness.

So, in terms of dealing with co‑operation the consideration is to think about, what can you give an individual, as a freebie if you like, to help them to come on side and be part of this process.  You can look at flexing identities of companions.  You can look to giving answers to written questions rather than an interview if that helps.  It is particularly useful with issues of ill‑health.

You could also look to provide information in advance.  I think our natural inclination when investigating is to say "oh no, can't give anything, must interview them cold".  But actually, there are plenty of things you could do to give them advice, to give them a bit of comfort or a bit of knowledge to enable to kind of prepare themselves.  And, of course, ultimately there is the potential threats of disciplinary action to be counselled to be used sparingly, but it is always there in the backdrop and we do use that.

So a number of different ways you could think about of dealing with issues where people are not co‑operating as I said the key thing is to understand the reason why they are not and then look to see what you can do to unpick that.

And then to close, I think a lot of the problems, a lot of the challenges we see in investigations is issues in communication and it is communication with all of those involved.  And I think treating all those involved as Stakeholders helps engender trust because communication is at the heart of engagement so you need to think about who needs to know what, who needs to be told, who needs to explain the basis on which decisions are made in order that they understand them.

Because they may not like them but if it is enough for them to engage and stay with you then you can carry on with the process, you can maintain integrity.  And making sure that you have got regular updates, making sure that people are updated and you get updates.  This is where it is key to… part of the terms of reference, the engagement with the investigator.  Often if I have engaged an external investor, will ask for weekly or fortnightly updates of where they are in various things so that everybody has known exactly what is going on.

And this can then help you manage expectations and that is one of the big areas of challenges that you get in investigations in which… when people's expectations are not properly managed.  They put two and two together to come up with five and you then kind of spiral out of control.  So, managing people's expectations are all involved.

And this comes then down back to the scoping and planning and making sure that things are reasonable by having a clear communication plan, so it is clear as to who is going to engage with whom and particularly that will form part of the terms of reference with the investigator as to what job the investigator has in dealing with people and what job the company has or kind of whoever it is who is instructing that, so it is very clear about who is having that.

And one of the issues I said in this individual who would not come to be interviewed, was the communications done with him internally were not quite correct and he had put two and two together and come out with a completely different number and did not really understand the purpose of what was happening.  Once you are able to unlock that, get the communications right, we had the engagement.

So, I think I have probably exceeded my allotted time, but there is a lot there to cover.  But I think the real kind of thing, as I said, to take away from this is the confidence to deal with these things but making sure that all potential challenges are considered right at the outset as part of the scoping and planning and building it in to that terms of reference, building in a communication plan.  I will pause there, Jane will come back in and I think then we have got time for questions.

Jane: Thanks Simon.  Yes, so we have got quite a lot of questions.  There is quite a few about privilege, so if we start with one of those, some of which you have answered but if we start with one that you did not.  "If we use our in‑house legal team to support an investigation, is that covered by privilege?"

Simon: That is a very good question.  A lot of those… it comes back to what I was saying about making sure you understand how you want privilege to work and who it is who is going to provide advice.  I think the issues for in‑house counsel is that often they are asked to give advice that is not legal in nature.  So I think, yes, advice from your in‑house counsel would be privileged but it has to be very clear on the basis that that is legal advice and not kind of practical potential commercial advice.

So this comes back to my point, I think I made when talking about privilege, ensuring you have a clear plan and understanding of how that works and there is the case that people have probably seen in the papers about UBS and Freshfields where there was confusion about what was privileged or not and then I think Freshfields were trying to backtrack a little bit about kind of what was what.  So it is just very clear… it is very important to make it clear what it is and what is not privileged.

Jane: Okay, and there is a couple of questions around, does legal privilege apply if HR are giving advice on the investigation?  Or does there have to a lawyer involved?

Simon: It has to be a lawyer or somebody kind of acting on behalf of the legal team so sadly I think the answer is kind of going to be "no" on that.  And certainly from my own personal experience of working in‑house, in HR I was not able to give privileged advice but people would assume that I would because I was a specialist.  So you would have to be very careful about what was put in writing.

And I think that is a really important kind of question to make sure… an important issue to flag that HR and people involved understand what privilege is and is not and how it works.  Because, as well, that is when you get… I think I said that is when you get into issues and details when you see a lot of correspondence coming up and you think "oh, well…" it is not privileged but people think it is so it is not the safe environment they thought it was.

Jane: Yes, sure.  Now there is a few questions around disclosing documents so let us take this one first, "are you obliged to share a grievance with the person who it is against?  Or should it be kept from them and only give them a brief understanding of what the issue is that has been raised?"

Simon: My initial approach in all things… kind of investigations is open and honesty.  I think if people think you are hiding things or not sharing, then you lose them at an early stage and as I said, a huge part for me, in protecting investigations from challenge, is having everyone on board.  As I said they might not be happy where it is going, but if they are on board and going with you then it is fine.  So I would always look to kind of to share a grievance, I think.

Issues you get into where people say they will not let you or you think there is kind of specific things in there which are data protection, but you then take a view and share, in those situations you can share snippets.  But then it is kind of part of the communication that you make sure that is agreed with the individuals and they understand the basis why and you make sure the investigation is built into the terms of reference.  But again it is making sure that all these decisions are documented and built in so that you can demonstrate that we have taken a reasonable approach.

So bit of a long winded answer, but I would rather you shared it all but, if not, then you can do it in other ways but making sure it is all documented and kind of explained why.

Jane: Yes and that is not necessary the same with a witness is it?  Because if there are multiple allegations it may be you only need to share a little bit of information with them to get their input on the bit that they are a witness to or alleged to be a witness to.

Simon: Yes.

Jane: And then another one on disclosure.  "Is the investigation report at the end always discloseable to the party or the parties?"

Simon: You do not have an obligation to disclose it.  That is also a kind of an "up to you".  It is important to plan from the outset whether you think you will or not.  In a grievance, it would be normal to do so because it is kind of their process, in something like a whistleblowing investigation then that is up to you.  In a disciplinary, yes it would as part of kind of a disciplinary process in terms of natural justice and ACAS code and you know all the law that says you should provide them with all the information.

So you have really got to plan from the outset what the type of investigation is and how it is… you expect it.  But I think you know… there is always… often an issue, when you read the investigation report, and you think "I don't want anyone to see that".  And you should always be kind of prepared for that and that is when you kind of look at Executive summaries and things like this but you can build that into the process.  And I did not say this actually, but you can build into the process to see a draft report with the terms of reference, agree with that for which you can take privileged advice.

And of course then that would not be a case of them coming back and saying "please change your report" but at least you can then prepare yourself for the final one and you can make helpful suggestions to the investigator about things they might want to/prefer to clarify or actually when you say this "what do you mean?"  So there is a number of different tools you can use kind of to help yourself but ultimately, if somebody raises a data subject access request and the report has got their data in it, they are going to see it.  And if there is any litigation it is going to be discloseable unless it is privileged and you can actually justify that.

So again kind of a long answer covering lots where the short term answer is "no, you do not have to share it" but the long term answer is "work on the basis that they are likely to see it in the long run unless you come to some sort of settlement agreement, effectively.

Jane: Okay, great thanks Simon.  So we are just out of time now, it is just after 11:40 so I am going to draw it to a close.  If we did not get to your question and most of you did ask it with your name, so hopefully we will be able to get back to you, we will do so after the Webinar.  So thank you for those.

As I said, you will get a questionnaire circulated after the Webinar is over.  Please do take the time to fill that in.  It only take a couple of minutes and that is very helpful to us and to you, for the future, because we will be better placed to tailor these sessions around what you are actually looking for and what is useful.

So, I hope many of you can join us for our fourth and final Webinar in this series, which is this Thursday at 11:00 o'clock, when we will be taking a look at workforce structures post the Uber decision.  And that again is 11:00 o'clock for 40 minutes.

So, other than that I will say thank you again to Simon, thank you to Lucy and thank you to those of you who have asked questions.  And hopefully you will have a good rest of the day.

Simon: Thank you all.