Looking into workplace investigations, Part 13 – post-report disclosure requirements (UK)
Your report is done, so what next? Where does it go now and what should you do with all your papers?
As a rule, your “client” for the purposes of the investigation is your employer, not any one or more of the individuals who may have participated in it. It needs to be able to present those people with not just the facts, but also (remember that investigations are just a means to an end – resolution – not an end in themselves) its decisions or proposals as to what should be done about them, which may or may not be in line with any recommendations made by you. Therefore your report goes first to the employer and not to the parties themselves. It is the employer which should deal with the onward distribution of the report to concerned parties at such time and with such covering comments as it sees fit, not you.
It is of the very nature of workplace investigations that someone will probably be unhappy with the factual conclusions or recommendations for resolution contained within them. They will demand sight not just of the report itself (there are very rarely any good reasons for denying this), but also of all the inputs into it by way of witness testimony. They will then spend many hours crawling through the details to see if any tiny cracks can be levered open in your journey from evidence to outcome which might allow them to discredit your work. This is rarely a fruitful exercise because, unlike a criminal investigation where tiny doubts or procedural errors could lead to the case falling over, an employer needs only that the investigation outcome was within the range of reasonable responses. Minor omissions and inconsistencies generally have far less significance to the integrity of the outcome than complainants would like to think. Nonetheless, people try. So what are your rights and obligations in relation to the disclosure of the evidence you heard, any preliminary drafts of your report and any correspondence with the employer about it?
That depends partly on how the demand for that disclosure is made – simple request, data subject access request or under litigation disclosure rules. An obvious preliminary point applicable to all three is that the more visibly reluctant production of documentation relating to your investigation, the greater the impression created that you have something to hide. If your investigation was genuinely independent and your conclusions all defensible, there should be little reason for that.
Then we should note the separate parameters of material responsive to a DSAR as against litigation disclosure. A DSAR should produce all material related to the requestor, whether or not relevant to the issues investigated, while litigation disclosure will cover everything that is relevant to the legal issue, whether or not it contains the personal data of the individual. In addition, while a DSAR can permit the redaction or omission of information relating to others, even where relevant to the subject of the investigation, litigation disclosure generally does not.
In any of those cases, the employer may fear that having seen at first hand who said what about him, an individual incriminated in your report will set off to confront the witnesses and exact some form of retaliation or, worse, seek to bully them into agreeing that he Is not in fact a bully. While that concern may or may not be legitimate on the facts, it does not represent a solid basis for withholding their evidence. Neither you nor the employer should have promised the witnesses that their evidence would be absolutely confidential or anonymised, but even if that did happen, that represents no defence to a DSAR or ET disclosure requirement. Such a promise might be good reason to deny a first-instance simple request for sight of the evidence, but nothing further.
Should you avoid all this bother and potential push-back by simply chucking out all the prior paperwork relating to the investigation report immediately it is finished and then blaming the GDPR for making you do it? No. First, the GDPR imposes no such requirement on you, as a minimum not until the limitation period has passed for any legal challenge to the report by the employee. Once such a challenge is intimated, even if not brought, then the personal data contained in those background papers may become necessary to allow the employer to comply with a legal obligation (defending itself against the threatened challenge) or to preserve its legitimate interests and so may be retained entirely lawfully. Second, deleting all your “workings-out” denies you or the employer the ability to show that the conduct and outcome of the investigation was within the old range of reasonable responses. Third, evidence that the HR shredder was running hot the day the investigation finished just looks like an organisation too keen to cover its tracks, not like an impartial professional with no fear of scrutiny of their work.
The disclosure obligations are particularly important if you seek the views of any party on the report itself before you finalise it. This is not generally a great idea because it opens the door to allegations that you have somehow needed the approval of that person to your conclusions, and as a truly independent fact-finder, that should not be the case. Any correspondence which you may have with the employer about the report before it is finalised will be disclosable, as will earlier drafts. Be careful in particular to avoid a situation like Ramphal – v – Department of Transport in 2015 where in the process of checking it with HR, the disciplinary manager’s recommendation somehow morphed from warning to dismissal without any disclosed explanation as to how, creating obvious scope for challenge. If you are genuinely uncertain about some part of your report, in particular around the relevant law and whether it is engaged by the factual conclusions you have reached, then take professional legal advice in order to ensure that both enquiry and response are covered by privilege. Therefore the broad principle is that you should be ready for any documents you generate in the course of your investigation to be seen by pretty much all the parties to it. That means not just the final report and earlier drafts, but also your notes of evidence, any audio recordings, any technical research, and so on.