Handling investigations: a guide

When allegations of serious misconduct within a business come to light, conducting a robust investigation is an essential step.   Our cross-disciplinary Investigations team has produced a handy checklist for business faced with the daunting task of getting an investigation on foot.  

1. Selecting an investigations team

The investigation team must be independent and free from bias. They must also have the skills and capacity to undertake the investigation. Often the business will need to involve its legal and compliance teams. The team should be tightly defined and managed to maintain the confidentiality of the investigation and avoid any issues with claiming legal privilege down the line.

2. Legal privilege and communications strategy

Businesses should think about legal privilege as soon as the investigation has begun in order to avoid creating potentially harmful documents which they are later required to disclose to authorities or third parties, and to avoid the risk of inadvertently waiving legal privilege.

There are many steps that can be taken to protect privilege, and businesses should seek legal advice early on to establish an effective strategy. 

3. Document preservation

Businesses must immediately put measures in place to preserve potentially relevant materials, especially where there is potential for litigation or the involvement of regulators.

4. Preparing an investigation plan

An effective plan will cover the purpose and scope of the investigation, the investigation team, the subject(s) of the investigation, the terms of reference, and other key information. 

5. Interim remediation and reporting

Pause to consider whether you need to take interim steps, such as suspending staff under investigation, notifying insurers or reporting to regulators. 

6. Document management

Collate, search and review the relevant documents using an agreed methodology to ensure consistency and thoroughness.

7. Interviews

Effective interviews are crucial for obtaining evidence, preserving legal privilege and maintaining the independence of the investigation. A select interview panel should prepare for and conduct the interviews with close regard for confidentiality, impartiality, data protection, the preservation of legal privilege over any interview notes, and any regulatory obligations. 

8. Expert advice

Some investigations will require specialist external advice about technical matters. Businesses should seek legal advice before engaging with experts, as communications with experts may not be legally privileged. 

9. Findings report

Produce a findings report in the form agreed in the investigation plan, taking into consideration any parties you may have to disclose it to, and setting out any privileged information in such a way that it would be easy to redact.

10. Remediation and other steps

Businesses should prepare a remediation plan, dealing with all aspects of the response, including disciplinary action, litigation risk, engagement with regulators, shareholders, victims and regulators and communications.  

For a copy of the full checklist, or to discuss options for handling an internal investigation, please contact Lydia Christie.