Confidentiality as a cornerstone

A guide to conducting workplace investigations

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Chapter four: Confidentiality as a cornerstone

The idea that a workplace investigation should be confidential is a deceptively simple one. In practice, failing to be mindful of confidentiality from the outset – even in the design of the investigation process – can breed a host of thorny practical problems as it progresses.

 

Why it matters

The need for confidentiality may seem obvious, but it is underpinned by a raft of good practical reasons.

On a cultural level, being able to trust that concerns will be treated in confidence is vital to ensure that individuals feel confident in coming forward. It is especially important that individuals feel empowered to speak up where they relate to potentially organisation-critical compliance or whistleblowing matters. An organisation where the confidence of complaints is breached clearly risks constructive unfair dismissal and whistleblowing-related claims.

In particularly serious and sensitive matters, failing to maintain confidence may risk other colleagues or even third parties engaging in (or being accused of) unlawful repercussions. Those concerns are potentially most acute where physical violence is alleged.

More generally, however, even the breach of confidence itself might be seen as being in reprisal for the initial complaint, risking claims of victimisation or whistleblowing-related detriment. Certainly, if a complaint or concern is leaked, it can quickly lead to allegations that a particular side is being taken, undermining trust in the process.

If confidentiality is breached, then that loss of confidence in the investigation may be inevitable. In particular, improper disclosure may give participants the opportunity to tailor their own evidence and co-ordinate or manage that of others, disrupting any careful efforts to manage interviews in sequence and take uncorrupted evidence.

Depending on what exactly is shared, there may well also be issues of breach of data protection law and loss of legal privilege, all of which reinforces the importance of maintaining confidentiality.

 

Key considerations

Limit the participants

From the outset, the investigation should be managed on a ‘need to know’ basis. Think carefully about whose involvement is generally necessary to conduct an effective investigation. It is important that those who are chosen to investigate and support the investigation are discreet and have the confidence of management to act independently, rather than with extensive involvement from others. Maintaining a limited audience is also key to prevent privilege over any legal advice being inadvertently lost.

Consider carefully where and how documents relating to the investigation will be held, particularly in terms of access credentials. If documents are being exchanged by e-mail, for example, does anyone else have access to the investigator’s inbox, or will their calendar be visible to interviewees?

Effective document management also makes life easier if the investigation is followed by court proceedings or in response to a data subject access request. For the same reason, it is also wise to be judicious about creating documents unnecessarily which might be disclosable at later stages.

Complainants and interviewees may ask for some or all of their contributions to be kept anonymous. However, that is not a practice to encourage, as it can be difficult to guarantee and to apply in practice. It may not be possible to maintain anonymity if legal proceedings follow, for example.

In the nearer term, if the investigation report is used as the basis of formal steps such as a disciplinary hearing, anonymous evidence can be difficult for an individual to counter fairly. For example, ACAS guidance regarding disciplinary procedures suggests that anonymised witness statements ‘should only be used in exceptional circumstances, such as when a witness genuinely fears revenge action’.

In summary

Confidentiality is a cornerstone of a fair and effective, workplace investigation. From protecting individuals from retaliation to preserving the integrity of evidence and legal privilege, the risks of mishandling confidential information are significant and far-reaching.

Organisations must embed confidentiality into every stage of the investigation process, from limiting access to documents and participants, to managing expectations around anonymity. Doing so not only safeguards legal and reputational interests but also reinforces a culture of trust, encouraging employees to speak up when it matters most.

Chapter five: Applying the burden of proof

A key part of that process is understanding what the burden of proof is and how it applies at each stage of the process.

Read chapter five

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