Workplace Investigations

Duty to the Alleged Offender

Duty to Investigator to the Suspected One

The position of the investigator is a delicate one. It is clear that the investigator is retained, in most circumstances, by the employer.

There may be a possible claim in negligent representation depending on what is said by the investigator. It is more than arguable that the relationship is a “special one” as such term was defined in Hedley-Byrne v Heller. It is clear that words spoken, would in a proper context, be relied upon by the interviewed person, to his or her detriment.

A statement such as “you are not a suspect”, “there will be complete confidence given to your answers”,  “you have immunity” or similar assurances may well be actionable when given in error.

Duty to Warn

A further issue is, whether or not one agrees with the popular notion that the accused person is not entitled to counsel, a position which this writer does not hold, should it not be an unbiased independent  lawyer who advises the suspected one whether they do or do not have the right to counsel ? This is discussed here.

The investigator will assert neutrality, notwithstanding the retainer, and if so, should not the questioning party instruct the alleged wrongdoer to at least speak to counsel to understand the repercussions of that which may well follow.

At the very least, the accused should hear from an external counsel whether or not he has the right to legal representation.

Issues such as the right to counsel, Charter rights, self-incriminatory statements, the common law confession rule, the right to refuse questions asked, or even the right not to attend the investigative interview, are difficult enough for a lawyer to understand and apply, but consider the position of an unrepresented alleged offender. Should this person not know their rights, however defined, before attending the inquiry?

It would appear that the preferred course of action is to advise the accused, whether or not the company’s policy is to allow counsel, to recommend that he or she do so to determine his or her rights. The question will be is there an obligation upon the neutral third party investigator to so advise the alleged offender to obtain preliminary legal counsel?

This issue is reviewed here.

Similarly, should the inquiry set out the rules under which the investigation is being conducted? Should the suspected one know to what use the final report will be made, whether the report will be subject to solicitor client privilege or some such similarly protective barrier to access? Should the questioned one be able to take notes, and/or be able to comment on the accuracy of the investigator's notes? These are live issues. The investigator's position as a true neutral would lead to the disclosure of these issues.

Should the report be intended to be subject to solicitor client privilege, conflict and ethical issue are raised. This places the investigator into the role of counsel to the employer and not a third party neutral. This alters the landscape considerably as to the disclosure of this position to the suspected one and the role of the investigator on a grander scale to the person interviewed.