Workplace Investigations

01. What legislation, guidance and/or policies govern a workplace investigation?

02. How is a workplace investigation usually commenced?

03. Can an employee be suspended during a workplace investigation? Are there any conditions on suspension (eg, pay, duration)? 

04. Who should conduct a workplace investigation, are there minimum qualifications or criteria that need to be met?

05. Can the employee under investigation bring legal action to stop the investigation?

06. Can co-workers be compelled to act as witnesses? What legal protections do employees have when acting as witnesses in an investigation?

07. What data protection or other regulations apply when gathering physical evidence?

08. Can the employer search employees’ possessions or files as part of an investigation?

09. What additional considerations apply when the investigation involves whistleblowing?

10. What confidentiality obligations apply during an investigation?

11. What information must the employee under investigation be given about the allegations against them?

12. Can the identity of the complainant, witnesses or sources of information for the investigation be kept confidential?

13. Can non-disclosure agreements (NDAs) be used to keep the fact and substance of an investigation confidential?

14. When does privilege attach to investigation materials?

15. Does the employee under investigation have a right to be accompanied or have legal representation during the investigation?

16. If there is a works council or trade union, does it have any right to be informed or involved in the investigation?

17. What other support can employees involved in the investigation be given?

22. What must the employee under investigation be told about the outcome of an investigation?

23. Should the investigation report be shared in full, or just the findings?

24. What next steps are available to the employer?

25. Who can (or must) the investigation findings be disclosed to? Does that include regulators/police? Can the interview records be kept private, or are they at risk of disclosure?

26. How long should the outcome of the investigation remain on the employee’s record?

27. What legal exposure could the employer face for errors during the investigation?