1. Failing to investigate

The first and most common pitfall is where employers fail to investigate at all. Whether or not embodied in a grievance or disciplinary provision or employee handbook, the common law principle of natural justice require that employers investigate circumstances surrounding an employee related issue before coming to a decision. If an employee makes an allegation and the employer takes a step adverse to that employee without conducting any investigation, the employer potentially puts themselves at risk.

The extent of that risk will be determined by the nature of the issue, but if, for example, an employee is dismissed without an investigation into the circumstances leading to the dismissal, the employer could be liable to a claim for unfair dismissal.

2. Both sides of the story

The second most common pitfall is where employers act without properly considering both sides of the story. The common example is where a trustworthy and reasonable employee reports another employee’s misconduct and the employer takes action before giving the employee against whom the misconduct is alleged an opportunity to respond. The common law principle of natural justice and/or the duty to act fairly in the Employment Act 2000 require that any employee alleged of wrongdoing be allowed an opportunity to respond to any allegations before the employer makes a decision.

The Employment Act sets out that in considering whether any dismissal was unfair, one of the considerations is the procedure followed by the employer and if that procedure is found to have been biased or unfair, an employee could be awarded compensation from the employer.

3. Impartiality

Much like the requirement to consider both sides of the story, steps ought to be taken to ensure the investigation itself is not inherently biased. This issue typically arises where the employee or manager conducting the investigation is a person too closely associated with the allegations. In smaller organizations it may be difficult to avoid this issue but advice should be sought on how to manage the circumstances at an early stage to mitigate any adverse consequences.

There is also a growing trend of employers relying on third party investigators (e.g. HR professionals, auditors, lawyers, labour relations experts etc.) to carry out the task of investigating a grievance or internal issue, and reporting on any findings. While this may mitigate some of the issues outlined above, there is going to be an additional cost and care should be taken to ensure that even if a third party is conducting the investigation, the results of that investigation will be useful in dealing with the relevant issue.

4. Confidential Internal Investigations – Increasing Regulator Oversight

With growing regulatory oversight, reporting responsibilities and the risk of significant penalties if found to have failed to meet any of the required standards, many organizations ought to be cognizant of the issue of whether or not information gathered during an internal investigation could be subject to disclosure during a subsequent regulatory investigation.

Summary

In general, investigations are sensitive internal operations which should be handled with great care. There are nuances involved that non-attorney advisers will be unable/unqualified to properly advise on. The law around internal investigations, confidentiality and employee rights is constantly evolving, and proactively seeking advice at an early stage is always recommended.

This note is intended as a high level overview of this topic. Legal advice should always be sought on a case by case basis.

Type

Insight

Locations

Bermuda

Share
Twitter LinkedIn Email Save as PDF
More Publications
24 Jan 2020 |

Innovative new products will drive ILS growth this year, predicts Adderley

This year will see a return to growth for the ILS market, with a range of new products helping clien...

21 Jan 2020 |

Bermuda Law & Practice

First Published in Chambers Insurance & Reinsurance 2020 Guide

16 Jan 2020 |

Pensions landscape to shift significantly

Sweeping changes to Bermuda’s pensions regime are underway that could result in private-sector emp...

7 Jan 2020 |

Arbitration of employment disputes: what employers and employees need to know

Arbitration is a form of alternative dispute resolution whereby parties forgo their right to sue in ...

16 Dec 2019 |

Americas Restructuring Review 2020

This chapter discusses the defining features of Bermuda’s insolvency landscape and the primary ins...

10 Dec 2019 |

The Insolvency Review – Seventh Edition

The seventh edition of The Insolvency Review  offers an in-depth review of market conditions and in...

5 Dec 2019 |

BMA forms view on cannabis related risk

The Bermuda Monetary Authority has confirmed that it will not object to BMA-supervised entities cond...

2 Dec 2019 |

Implications of the Privy Council’s decision in the ‘belonger’ case

Bermuda’s final appeals court has handed down its decision in a long-running case which had the po...

21 Nov 2019 |

BMA releases guidance on outsourcing

For many companies, outsourcing is essential in allowing them to cost effectively and efficiently pr...

15 Nov 2019 |

New Family leave rights on horizon

Working families will benefit from more generous leave entitlements in the New Year. When it comes i...