Looking into workplace investigations, Part 10 – sticking to the brief? (UK)David Whincupon February 14, 2022 at 2:13 pm Employment Law Worldview


One question which may come up at or before you plunge into your investigation questions is that of legal representation at the meeting for the witness.  If the employee says that he wishes to bring his lawyer, do you have to agree?  If not, should you agree anyway?

The law on this is very clear — there isn’t any — and therefore your witness can effectively forget about any absolute right to turn up armed with legal counsel.  Even if the statutory entitlement to be accompanied at grievance and disciplinary meetings applied to purely investigatory get-togethers, which it doesn’t, it provides for colleagues and trade union officials only.  It remains good practice to offer equivalent rights to a companion in an investigatory meeting, but that still rarely includes lawyers. There are some obvious grounds for declining that request, but also a number of less obvious reasons why it might not be the worst thing in the world to have a lawyer present, and may actually help you get to the bottom of the questions you are looking into.

Reasons for saying no:

the risk that the lawyer will feel himself obliged to earn his fee by undertaking a pointless but vigorous cross-examination of you while you are trying to get something out of his client;
some lawyers are, whether intentionally or not, more adept than others at keeping to the point;
legal representatives may advise their clients not to answer certain questions or otherwise discourage a free and frank dialogue around the issues at stake;
if the witness brings a lawyer, you may feel it necessary even as neutral investigator to ensure that you are not legally outgunned by bringing your own.  If that is the plan, then for maximum effect your lawyer should ideally be taller and better-dressed than the employee’s (a Top Tip inexplicably omitted from the Acas guidance on investigations) .  However, having two lawyers present risks the unhappy prospect of the representatives sparring round each other at your joint enormous expense while neither you nor the employee dare to say anything at all.

But on the other hand:

If your witness is particularly young, nervous, garrulous or confused, a calmer presentation of his evidence may be helpful.  Similarly, it might well be a reasonable adjustment to allow legal representation if the employee suffers from a disability which makes it hard for him to put his case coherently.  If you would be prepared to go outside the traditional colleague or trade union official in such cases, then your objection on principle is already holed below the water line.  To then agree that someone can bring a friend or relative into your investigation “so long as they’re not a lawyer” just suggests that you intend or expect to say something inappropriate in your meeting, and do not want it heard by anyone likely to recognise it as such.  Not an attractive stance.
Where the potential consequences for the employee of your findings are exceptionally serious (i.e. they go beyond possible loss of employment to loss of career, most commonly in regulated environments such as teaching, medicine or financial services), then the ET and perhaps the relevant regulator will welcome the extra layer of procedural insurance which the attendance of counsel for the employee should bring.
Actually lawyers really don’t like attendance at such meetings, as it denies them the ability to do what they do best, being wise after the event.  A lawyer in the thick of an investigatory meeting knows that if he misses a point or his client goes particularly off-piste and he doesn’t correct it immediately, it will be very hard for him to use it against the employer later.  It also has the potential side-effect of making him into a witness in any later ET proceedings when he would much sooner be on the far side of the table from the Judge.
Allowing the witness to bring his lawyer denies him one basis on which to delay the process.  That is particularly important where there is some imperative to resolve the matter quickly, e.g. where the protagonists are still working together.
Last, going back to (iii) above, how would the employee’s seeking some sort of right to silence impact your investigation?  You might not hear evidence which could have been helpful, but that does not prevent you from reaching a conclusion on the balance of probabilities based on what you did get from that witness or others.  There is no actual right to silence in internal investigatory matters, even if there might be in relation to parallel criminal proceedings.  A witness is fully entitled to take the view that protecting his position on the criminal front is more important than in relation to his employment or the subject of the investigation, and so to clam up when asked about anything awkward.  In the end, however, that still does not prevent the investigator from drawing reasonable adverse inferences from that silence, especially if the witness could easily have given a non-incriminatory reply if it were true, but doesn’t.

So overall, the question of whether you should let lawyers into your investigation meetings is one which you should answer on a case-by-case basis, not as an issue of blanket policy.  If you allow that for some witnesses who request it in a particular investigation, and not for others, then expect to be called upon to justify that difference in treatment.  If there are good reasons within that range of reasonable responses, however, your conduct should not be open to challenge.

Employment Law Worldview

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