Formal workplace investigations can have a significant impact on the individuals involved, regardless of whether they’re the complainant, respondent or a witness and it’s common for those involved to be concerned about the degree to which confidentiality will be maintained.
If you’re involved in a workplace investigation and want to understand the confidentiality requirements, here’s an overview of how Emverio Workplace Solutions handles confidentiality in our workplace investigations across Australia.
Confidentiality of workplace investigations
Workplace investigations are confidential processes.
When a workplace investigation is undertaken and confidentiality is not maintained, it could have a significant negative impact on those involved and could escalate to contaminate the broader team. Not keeping confidentiality could also be detrimental to an individual’s reputation, credibility or professional standing within the organisation and/or industry. In some cases, it could be detrimental to someone’s mental health and wellbeing causing psychological injury or exacerbate a pre-existing mental illness, or even lead to a defamation case.
Individuals who are interviewed as part of a workplace investigation often don’t want their statement publicised and want to be reassured that their interview remains confidential. As an external provider of workplace investigations, we do not release any information to anyone other than the employer (or their legal representative) unless we have been legally compelled to do so.
At the commencement of any workplace investigation, the employer (or investigator appointed by the employer) normally instructs everyone involved to treat the investigation as confidential. Individuals should not discuss or share any details with anyone outside of the investigation, unless it is their industrial advocate and/or for their mental health and well-being (such as a counsellor or other allied health professional).
We keep any statements made in the course of the investigation confidential. However, it’s important to note that all our interviews are audio recorded, transcribed and attached to our final reports. At Emverio Workplace Investigations, a copy of the final report is provided to the employer, and it is up to your employer to determine whether all or part of the report is shared with any other parties. Once we provide the report to the employer, we don’t have a lot of control over what the employer does with the information in the report. For more information about what your employer does with its reports, consult your workplace policies and procedures, or alternatively, speak to your Human Resources team.
It is generally accepted as best practice that employers provide some details about the findings of the report to the respondent and only share details of the matter with those who need to know (for example, if any findings will impact them). It is also common practice that employers will provide a summary of the outcome to the complainant, as long as it doesn’t breach any other person’s right to privacy and confidentiality.
This approach ensures all the information collected by the investigator remains confidential and minimises the opportunity for further escalation of the conflict within the team. We always recommend that employers store their reports in a separate database where access is restricted.
Why confidentiality might not be able to be maintained
While witness statements or information relating to a workplace investigation should always be kept confidential, there are some scenarios where maintaining confidentiality may not be possible.
- Anonymous Complaint: In some cases, a complainant may request to remain anonymous, for example – if they have a genuine fear for the health and safety as a result of raising a lawful complaint. In cases where anonymous complaints are permitted (for example eligible whistleblowing complaints), the respondent may still be able to deduct who the complainant is based on the circumstances that might be put to him/her at the interview (see point below). It’s very important that if you fall within the above category to speak to your employer about strategies to maintain your safety whilst the matter is being investigated.
- Procedural Fairness: Serious allegations of misconduct, which could result in disciplinary action or dismissal require the process to be robust and procedurally fair to each party involved. This includes giving the respondent as much information as is needed to be able to fully respond to those allegations. In order to do this, the investigator may be required to share names or details which could identify (even by deduction) a complainant or a witness, even when provided anonymously.
(also known as Legal Professional Privilege)
As a general proposition, communications between solicitors and their clients are protected by legal professional privilege, allowing communications between solicitors and their clients to be frank and honest without fear of disclosure.
However, that does not automatically mean that because a lawyer is carrying out the workplace investigation that the investigation will automatically attract legal privilege.
There is some case law1 that establishes that an employer can waive that right to legal privilege if an employer relies on the contents of the workplace investigation report to form conclusions about what further actions they will take. Under those circumstances the Court has held that it would be unfair to not allow the employee to have access to that report.
It is important to understand that there is a distinction between carrying out a workplace investigation and the provision of legal advice. The latter attracts legal privilege, the former does not necessarily or automatically. You must discuss this with your workplace lawyer, if you want your workplace investigation to be covered by legal privilege.
Emverio Workplace Investigations
At Emverio Workplace Investigations, we provide affordable, compliant and robust external workplace investigations services. You can engage us through your lawyers or directly.
As part of the larger Emverio Workplace Solutions group, we specialise in investigating a wide range of employee conduct including complaints about bullying, discrimination, sexual harassment, misconduct, whistleblowing and other misconduct.
Our highly experienced investigators ensure your workplace investigations are conducted quickly, fairly and confidentially, enabling you to make informed decisions based on findings which will withstand robust third-party review.
This article includes information from the following sources:
- Coors Chambers Westgarth, Mental health and workplace investigations: What are your obligations? – https://corrs.com.au/insights/mental-health-and-workplace-investigations-what-are-your-obligations
- Law Council of Australia, Client Legal Privilege – https://www.lawcouncil.asn.au/policy-agenda/regulation-of-the-profession-and-ethics/client-legal-privilege
- Holding Redlich, Workplace investigations: Can employers require employees to maintain confidentiality?
1 Liquorland (Australia) Pty v Anghie  VSC 73, Bartolo v Doutta Galla Aged Services Ltd  FCCA 15171 (Doutta Galla)