The Importance of Preparation

It could be said that a successful investigation is as much in the planning as the delivery. It is important that the organisation, with the assistance of its legal advisors, consider a range of matters at the outset, to ensure that the investigation is effective and does not in itself generate unnecessary difficulties. 

Initially, it is necessary to determine which person or entity within the organisation is to convene, and determine the terms of reference for, the investigation. This may be the Board or it may be a specifically designated committee or entity depending on the nature of the allegations or concerns. The organisation may have policy or procedure in relation to matters such as whistleblowing, allegations of corruption or bribery, or safeguarding, which address when an investigation should be conducted, and who should convene this. Alternatively, there may be a standard regulatory process, or it may be at the general discretion of the Board or relevant committee.     

Terms of Reference

The terms of reference are fundamental to the investigation in that they give it its focus and shape. What is the purpose of the investigation? What, or indeed, who is to be investigated, and in what way? There are a range of fundamental questions that need to be answered. There is no (usually) no prescribed template for an investigation, although the terms of reference may include the following: 

  • The context

  • The nature of the allegations or concerns

  • The rational for the investigation

  • Internal roles and responsibilities for the investigation

  • The appointment of the investigator

  • The scope of the investigation

  • The issues to be covered (including from a regulatory perspective)

  • The process of the investigation

    • The level of discretion given to the investigator 

    • Participation

    • Evidence gathering

    • Fresh allegations or concerns

    • Timings

  • Whether recommendations are to be made 

  • Delivery of the report

  • Whether there is a need for an interim report

  • Confidentiality

The investigator may helpfully input into the terms of reference, particularly to the extent of ensuring that the investigation is able to effectively deliver on its objectives. Care needs to be taken, however, to ensure that the investigator does not step into the role of advisor or that their independence is compromised.  

Key Matters to Consider

The following are examples of important matters which may also require attention in advance (and may indeed affect the terms of reference): 

  • That the processes of the proposed investigation are lawful, for instance in respect of data protection, accessing materials, tipping off, employment rights and overseas actions.

  • What aspects of the investigation, if any, may be covered by legal privilege – and what steps may be taken to maximise the prospect of it applying. Protective actions should be taken, in any event, to ensure that any subsequent disclosure is not overly broad.  

  • How any employee disciplinary procedures may interact with the investigation, noting that employee rights should be protected.

  • Whether relevant staff and officers may continue their duties during the period of the investigation. 

  • The securing of assets, and the preservation of documents 

  • Confidentiality, both during the process and in respect of outcomes

  • Ensuring that relevant policies and procedures are identified and fit for purpose

  • Safeguarding and supporting participants in the investigation, including complainants and subjects of the investigation

  • Public and internal communications

  • Whether interim reporting is required

  • The extent to the which the investigation report will be disseminated 

  • The relationship with, and involvement of, any regulator or supervising body. This may be a significant issue, depending on the sector, which could fundamentally affect the nature of the investigation. The regulator may wish to input into the investigation and the issue of the provision of evidence and the report to the regulator will need to be tackled.   

  • Whether there is the need to contact a law enforcement agency, or may be such a need arise during the process. Where potentially criminal conduct is being investigated, this matter will need to be carefully addressed, with the benefit of legal advice.

  • What approach is to be taken to any recommendations sought from the investigator. Whilst a ‘wait and see’ approach could be adopted, an organisation will need to have good justification for not following a core recommendation.

As is evident from the above, the level of necessary preparation varies between investigations, and in part depends on the regulatory context. Proportionality remains important, and legal advice essential.  


*The information on this website is provided for education and guidance, and is not legal advice.