- Key principles
In most internal investigations, a company will interview its employees to help establish the facts, identify the extent of any misconduct and consider its reporting obligations and options. Interviews may take place before or after any document review process (or both). Preliminary fact finding interviews may be necessary to gain a better understanding of the alleged misconduct and to inform any subsequent data review.
It is important to consider carefully which individuals should be interviewed, and the order of interview, by reference to whistle-blower information, documents, job responsibilities and/or reporting lines. It is likely that additional people will be identified as relevant as the interviews are carried out. Generally, it is appropriate to interview suspected wrongdoers last, and to sequence other interviews so as to reduce the likelihood of needing to re-interview earlier witnesses for clarification.
At the start of any interview, an “Upjohn” warning should usually be read to the employee. Originally a US practice, these cautions are now common in England: they involve the interviewing lawyer informing the employee that (i) they represent the company and not the employee; and (if privilege applies) that (ii) the interview is protected from disclosure by legal privilege which belongs to the company and (iii) the company may choose to waive this protection and disclose the note to a third party (such as a regulator) without consulting with the employee.
Depending on the circumstances of the investigation, especially the level of potential culpability (and criminal liability) of the interviewee, it may be appropriate to advise the employee that he may wish to consult an independent legal adviser (ILA). Certainly, the engagement of an ILA may impact on the willingness of an employee to reveal important information. Nonetheless, a company should be mindful of fairly treating any employees who are at risk of incriminating themselves.
- Recent developments
- Practical tips in an investigation
- Carefully consider whether to record, what to record and how to record any interview; for example, by taping or note taking (whether a summary or verbatim note). Taping is accurate but may create the wrong atmosphere. A verbatim note may also be accurate but miss the nuance that a summary highlights. Issues of privilege are highly relevant to this decision. Absent litigation privilege, there is a real risk that any record will be disclosable to the authorities. For further discussion, see our accompanying note on “Privilege” and see "international perspective" below.
- Find out whether the interviewee has spoken to anyone in advance of the interview about the investigation, and what information they already have.
- Prepare, in advance, an outline of interview questions but do not be afraid to depart from it. Generally, any line of questioning should be introduced with open questions that allow the interviewee to offer their version of events, unaffected by the interviewer’s assumptions and biases.
- Generally, interviewees are not provided with documents in advance of internal interviews. However, the interviewer should be prepared with a bundle of relevant documents to put to the employee during interview.
- An employee may be more likely to provide focused and relevant answers if they are shown a document, particularly if the matter under investigation is historic. However, in certain circumstances - for instance where an employee is suspected to have behaved inappropriately - consider initially questioning the employee without disclosing the substantiating document(s). Potentially false evidence may be exposed if the documents contradict the initial account given in interview.
- Remind the interviewee to keep the content of the interview confidential, in order to preserve any legal privilege. Finally, check that the interviewee is not recording the interview on a device.
- International perspective
- A common issue that arises in interviews overseas is whether and on what basis interviews can be recorded. Recording meetings in which an interview is taking place has a cultural dimension too - in some countries, no particular offence would be taken if a meeting is recorded; in others, the suggestion that the meeting is recorded will cause great offence and derail the interview process. Leaving aside the cultural aspects of recording interviews, local legal advice should be taken to determine whether the interview can be recorded without breaching local laws and whether written consent should be obtained from the interviewee before the recording begins.
This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.