To Investigate or Not to Investigate

The first decision an employer will need to make when faced with allegations of employee misconduct is whether an investigation is necessary at all. The need for an investigation will be determined by the seriousness of the conduct at issue and the potential consequences for the employee facing the allegations. Common reasons for workplace investigations include complaints of gross misconduct, such as violence and breaches of trust, violations of company policies, and allegations of harassment or bullying.

An investigation should occur prior to any disciplinary hearing, and before any significant discipline, such as termination, is dispensed against an employee. The investigation should begin as soon as management becomes aware of an employee’s alleged misconduct. In certain circumstances, it may be necessary to suspend an employee as soon as an investigation reveals a serious matter that may result in disciplinary action. Such suspensions are usually with pay, since they are not disciplinary actions.

Who Should Investigate?

The role of an investigator is to be fair and objective in attempting to establish the facts of the case and determine what did and did not occur, but not to prove any party’s culpability. The person conducting the investigation should therefore be an impartial individual who holds a suitable level of seniority. They should obviously not be a witness to the events that gave rise to the allegations being investigated, and should also not be the person who will be appointed to conduct any disciplinary proceeding that may ultimately be convened. Ideally, the investigator should be someone who is properly trained in conducting sensitive and unbiased investigations.

In practice, investigations are therefore often conducted by HR professionals or managers not directly involved in the matter. However, it is worth considering appointing an independent external investigator to conduct an investigation, especially when the issues involved are complex or sensitive, or where the reputation of the employer company is at stake. Such an appointment frees up management time, provides reassurance that complex employee relation matters will be handled in a professional manner, and gives employees and other stakeholders greater confidence that the investigation process will be objective and fair.

The Investigation Process

All necessary investigations of prospective disciplinary matters should be conducted expeditiously. It is crucial to create an investigation plan with details such as a witness list, sources of evidence to be collated and examined, policies or company guidelines to be followed, and a timeframe for the investigation. Thoroughly documenting all aspects of the investigation is also important.

As part of the investigation, any relevant documentary evidence should be collected. The nature of these documents will depend on the particular investigation, but may include paper files, emails, telephone messages, computer data and other records that could be relevant to the allegations. It is likely to also include employment related documents, such as the employee’s contract, employee handbook and copies of relevant policies and procedures.

If there are witnesses to an incident of misconduct, their accounts of the events at issue should be documented in witness statements as soon as possible. It is crucial that all relevant witnesses provide statements, not just those who support the allegations against the employee. As part of the investigation, all witness statements should be examined for inconsistencies, inaccuracies and indications of collusion.

In order to obtain witness statements, it likely that it will be necessary to conduct one or more investigative interviews with both the witnesses and the employee accused of misconduct, with the employee accused of wrongdoing being provided with the opportunity to respond to any allegations. In fact, people may need to be examined more than once, especially if clarification of their evidence is required in light of evidence that comes to light after a first interview. Careful notes should either be taken of such interviews, with the interviewee signing the notes at the end to confirm accuracy, or, with the permission of the person being interviewed, the interview may be recorded.

The investigation should be kept confidential, even if it becomes common knowledge that one is being conducted. Any breach of confidentiality could be considered a disciplinary matter. However, witnesses should be warned that their evidence may need to be disclosed to others during the investigation, and in any subsequent disciplinary process, possible regulatory investigation, and tribunal or court proceedings.

Having collected the appropriate evidence, the investigator must then evaluate it and make findings and recommendations. These findings and recommendations are usually compiled into an investigation report.

What Happens After the Investigation is over?

The employer should review the investigation report and take any necessary disciplinary actions, make policy changes or institute other corrective actions based on the findings. If the action taken differs from the recommendations in the investigation report, the reasons should be recorded in writing.

The employer should also communicate outcomes appropriately while maintaining privacy. The employee under investigation should be informed of the outcome of the investigation in writing. Depending on the findings, there may be a need for market announcements or shareholder communications, especially if an issue or the investigation itself has been made public. There may also be an obligation to provide certain information to the relevant regulator.

Ultimately, mishandling a workplace investigation can influence the outcome, damage workplace morale, and expose an employer to future scrutiny should the matter result in a tribunal claim or a court case. Proactively seeking advice from an employment law specialist is therefore recommended.

First Published in the Bermuda Chamber of Commerce Newsletter (Chamber Insider), June 2025