November 25, 2021

Legal professionals, human resources specialists, and management personnel are increasingly called upon to assist organizations in carrying out a workplace investigation. Investigations frequently involve complex and sensitive matters: allegations of discrimination or harassment (including a poisoned work environment), claims of violence, complaints of personal harassment or bullying, and other difficult issues.

The proper conduct of a workplace investigation can raise challenging questions for lawyers, paralegals, and human resources practitioners in terms of meeting their responsibilities under codes of professional conduct. In this session, an expert panel of lawyers and investigators will provide guidance on professional and ethical rules applicable to those involved in a workplace investigation.

  • What qualifications or experience should an investigator have in order to meet the professional duty of competence?
  • What essential points should be covered in retainer agreements and engagement letters?
  • Is there a potential conflict between the investigator’s neutral fact-finding role and the investigator’s engagement by a client?
  • Can a conflict of interest arise if the investigator has acted or been retained to act on other matters for the same client or organization, such as claims of unjust dismissal?
  • What steps should an investigator take to meet the professional obligation to protect individual dignity and recognize diversity? What can an investigator do in order to guard against unconscious bias?
  • To what extent is an investigator obligated to take into account employees’ reasonable expectations of privacy?
  • What are the implications of the professional duty of honesty and candour in the context of a workplace investigation? Is an investigator under a duty to disclose information about possible misconduct that is unrelated to the subject matter of the investigation?
  • How should the duty of confidentiality inform the drafting of an investigation report, given that the report could be subject to disclosure in legal proceedings?
  • What information should be provided in reporting letters, as distinct from the investigation report itself?
  • What is the difference between the professional duty of confidentiality and the legal privilege that may attach to the investigation report?
  • Can an investigator be called as a witness? If so, what considerations should guide the investigator’s testimony?