Global Investigations Review - The law and practice of international investigations

Employee Rights

Last verified on Monday 13th May 2019

United Kingdom

Sue Prevezer QC and James McSweeney
Quinn Emanuel Urquhart & Sullivan LLP

    The company’s investigation

  1. 1.

    How does the company retain its privileges, including the attorney-client privilege, when interacting with employees in an investigation?

  2. In the UK, legal professional privilege may be asserted in circumstances where advice is sought or given, or in circumstances where communications take place for the purpose of ongoing or reasonably contemplated litigation. There are therefore two broad categories, "advice privilege’ and "litigation privilege".

    In the context of an internal investigation, it is unlikely that interactions between a legal representative (whether internal or external) and an employee will be covered by "advice privilege’, unless a series of conditions are met, including crucially whether or not that employee can be considered to be the "client". Ordinarily, the client for these purposes is easily identifiable as the senior individual(s) capable and authorised to seek legal advice. Therefore, while advice given to the client concerning the parameters, execution and conclusion of an internal investigation can potentially attract advice privilege, it is unlikely that communications with employees, including, for example, the conduct of employee interviews by legal representatives, will attract advice privilege protection.

    In Re the RBS Rights Issue Litigation [2016] EWHC 3161 (Ch), it was recently held that advice privilege will not attach to lawyers’ notes taken during the course of an internal investigation. The judge in this case also held that there was no category of 'lawyers' working papers' privilege that would afford such documents legal professional privilege protections.

    In 2017, the controversial case of The Serious Fraud Office v Eurasian Natural Resources Corporation Ltd (ENRC) [2017] EWHC 107 (QB), established that a company could not argue that privilege protections were afforded to documents and communications created in the context of an investigation by law enforcement by relying on litigation privilege. This was the first case before an English court that considered a claim for litigation privilege in which the proceedings said to have been reasonably in contemplation were of a criminal, rather than civil, nature. The judge ruled that a criminal investigation (here, brought by the Serious Fraud Office) was not "adversarial litigation" for the purposes of asserting litigation privilege. The rationale is that at the investigatory phase, a decision to prosecute and therefore commence adversarial litigation can only be made upon the discovery of actionable evidence. Here, ENRC was not aware of any such evidence, and the SFO had not uncovered any. Therefore, it cannot be said that litigation was either in progress or reasonably in contemplation. It is important to note that the judge drew a distinction between criminal and civil litigation on the basis that unfounded civil proceedings may be brought at will, and therefore it was appropriate to make that distinction and limit only criminal internal investigations.

    This judgment was overturned following an appeal by ENRC in 2018, where it has been clarified by the Court of Appeal that the same reasonable contemplation threshold should apply to both civil and criminal proceedings. Providing documents are created for the dominant purpose of defending or avoiding such proceedings, litigation privilege will apply to communications and documents created in the context of an investigation by law enforcement. The Court of Appeal also reaffirmed the principle that advice privilege can only apply to communications between the lawyers and those persons authorised to seek or receive legal advice – or the “client”, as set out above. What this case demonstrates is that privilege protections are highly fact specific, and any company conducting an internal investigation should, at the outset, define clear communication parameters to ensure privilege protections are established and preserved.

  3. 2.

    How does the company retain work product privileges when interacting with employees?

  4. There is no concept of “attorney work product privilege” in the UK, and accordingly legal professional privilege may only be asserted in circumstances where advice is sought or received, or where a document or communications are created or take place in the context of actual or reasonably contemplated litigation. At all times, materials must remain confidential, as loss of confidentiality may amount to a waiver of privilege.

    To preserve or create reliable protections, practical considerations would include identifying those who make up the ‘client’ pool. All personnel at the company authorised to seek and obtain legal advice should be readily identifiable by reference to written records and/or policies and procedures. These records should be routinely maintained and referred to at the outset of an internal investigation. Any communication that is required to be protected by legal professional privilege should be limited to those within this pool and the legal representatives. All such communications should be marked in such a way as to denote the intention to create or maintain privilege protections (for example, including “Privileged and Confidential” in the text of an email).

    Privileged communications should not be shared with persons outside of the client–lawyer relationship, as doing so may be construed as a waiver of privilege or loss of confidentiality. Such communications should also be kept to a minimum and, where possible, limit the degree of sensitive information directly relating to an investigation.

    Pure fact finding during an investigation, for example, a written record or transcript of an employee interview, will not be afforded advice privilege protection. Litigation privilege may also apply in the context of actual or reasonably contemplated litigation. The applicable litigation context, whether civil or criminal, should be discussed at the outset of an investigation, and the rationale for any application of litigation privilege recorded. This record should be maintained and amended where necessary during the course of an investigation in order to remain reliable.

  5. 3.

    What claims may an employee bring against the company during an investigation? How can the company protect against them?

  6. An employee may bring claims against a company in the event that an investigation results in the termination of their employment. Such claims are limited to instances in which the termination was “unfair”, and can include circumstances in which an employee was made to feel harassed or discriminated against by virtue of being the target of an investigation. Such claims would have to be based on evidence, and an employee would have the right to disclosure over any materials generated as a result of or in the course of the investigation that were not protected by legal professional privilege.

    An employee cannot be compelled to engage with an internal investigation. If support for such an investigation is required, for example, as part of their employment contract, and the refusal to do so was the reason for termination, it is possible that would provide grounds to dismiss that employee. However, that decision could be challenged depending on the factual circumstances surrounding the need for their involvement. If the company were in possession of substantial evidence that pointed to the employee having a significant role in wrongdoing, or otherwise acting not in accordance with their employment obligations, that could provide defensible grounds for termination. In these circumstances, the company would have to consider a number of factors prior to dismissal, including the potential reputational damage that may be incurred during a public employment tribunal hearing, in which the details of an internal investigation were to be heard.

    Companies will hold a degree of “personal data” for each of its employees, which may be the target of a “subject access request” under the EU General Data Protection Regulation and the UK Data Protection Act 2018. Although not a claim as such, an employee would be entitled to request disclosure of any of their personal data unless the exceptions to disclosure apply, such as legal professional privilege. A company can protect against this by limiting the use of personal data in sensitive documents.

  7. 4.

    What agency procedures or whistleblower rules should the company be aware of in this jurisdiction?

  8. The Public Interest Disclosure Act 1998 inserted provisions into the pre-existing Employment Rights Act 1996 that provide employees protection from victimisation or dismissal following the reporting of malpractice by their employers. The legislation operates such that a mistreatment or dismissal of an employee on the basis of their having made a “protected disclosure” is automatically unfair, and the company will be subject to an uncapped damages claim as a result. A protected disclosure is defined as a disclosure of information (but not merely the gathering of evidence – this may amount to misconduct and therefore potentially invalidate any claim in this context), falling into one of six categories that cover criminal or otherwise unlawful conduct, danger to health and safety, damage to the environment or attempts to conceal information relating to those former categories. 

    The legislation encourages employees to report, in the first instance, concerns or allegations of malpractice internally. Accordingly, companies should have a clear an accessible internal whistleblower procedure that is monitored by compliance and/or legal functions.

  9. 5.

    What are the considerations when conducting without notice interaction with company employees in an investigation?

  10. There is no obligation to notify an employee of an internal investigation, or that they may be required to participate. Practically, of course, if an employee is to participate a degree of interaction will be required. Such interactions should not include sensitive information about the investigation, as they will not be privileged or protected from disclosure. Best practice would dictate that approaches in this context are not made in person in order to preserve a record of the request and response accurately. If an employee were to make a without notice interaction with an internal or external person involved in the conduct of an investigation, that interaction should be swiftly brought to an end, and where appropriate, an explanation of the need to preserve confidentiality and privilege given.  

  11. 6.

    What should the company know about the anti-bribery and anti-corruption laws in this jurisdiction? How, if at all, does the Voluntary Self Disclosure and FCPA Pilot Program apply to this investigation?

  12. In the UK, anti-bribery and corruption offences are largely governed by the Bribery Act 2010. The Act introduced an offence of failure to prevent bribery on behalf of a commercial organisation. The offence operates in such a way as to make the organisation liable for the criminal offences of bribery and corruption committed by their employees on behalf of the organisation. The only defence to this offence is to demonstrate that the organisation had in place adequate procedures to prevent such bribery and corruption taking place. Whether a particular organisation’s procedures are “adequate” will require a subjective analysis of what degree of policy, procedure, training, monitoring and so on could be reasonably implemented by the organisation, having regard to its size, nature of business activities, the locations it operates in and any other relevant factors.

    The corporate offence under the Bribery Act can also become engaged where the underlying criminal offence is committed by a person associated with the organisation. This can include subsidiary companies, partners to a joint venture, third-party contractors, suppliers or any other party who performs a service for the organisation. 

    The Act also contains offences relating to private bribery and bribery of foreign public officials, and has no de minimis provision, such that facilitation payments are not permissible as is the case under the US FCPA.

  13. 7.

    How do labour laws, collective bargaining agreements, and the procedural pre-emptions affect the internal investigation?

  14. There is no statutory obligation to allow an employee to be accompanied by anyone during an interview as part of an internal investigation. The situation is different in relation to disciplinary meetings or hearings internally, in which a trade union representative may attend. An employee may request that he be accompanied by a personally engaged legal representative, but there is no obligation to acquiesce to that request. There are benefits to both parties if such a request is made, but the position in relation to confidentiality, legal professional privilege and potential future litigation will have to be carefully considered.

  15. 8.

    Does this jurisdiction recognise the "employment at will" doctrine? Are there exceptions to this doctrine?

  16. While the UK does not recognise the doctrine of "employment at will", there are certain organisations that employ workers on a temporary basis with no guarantee, or obligation on behalf of the employee, to undertake paid work.     

  17. 9.

    Does this jurisdiction recognise claims for unlawful retaliation by an employer against a whistleblower?

  18. Such claims in the UK are automatically considered unlawful and actionable. The relevant legislation protects both against dismissal and victimisation as a result of making a whistle blowing disclosure. In addition to claims brought by the employee, in certain circumstances there may be regulatory sanction as well. One recent example is the Financial Conduct Authority’s decision to fine Barclay’s CEO Jes Staley in excess of £640,000 in relation to attempts he made to uncover the identity of a whistleblower. This case highlights both the need for an anonymised internal reporting structure and the importance of not engaging in attempts to circumvent that protection.

  19. 10.

    Who may represent the employees in an investigation, and what are the company’s obligations to facilitate their representation?

  20. There is no obligation to recognise or accommodate a legal representative of an employee, but in circumstances where an employee instructs such a representative, it is often beneficial to both parties to allow that representative to attend and participate. There may be circumstances in which an employer would suggest that an employee seek legal representation, but that would likely come about as a result of an expectation that the employee is not only substantially involved in any misconduct being investigated, but also likely to adopt a position adverse to the company, and that there is a likelihood of adversarial litigation following the conclusion of the investigation. An alternative situation in which employee legal representation would be beneficial would be if an employee with seniority sufficient to be potentially considered the controlling mind and will of the company as a whole was the subject of an investigation, and therefore outside of the pool of internal “client” personnel. In that situation, additional legal representation would assist in the event that there were to be a joint defence agreement or a common interest privilege sharing agreement.

  21. 11.

    What obligations does external counsel to the company have towards employees that are not considered to be clients of the attorney? Is this the same for in-house counsel?

  22. For external representatives, the situation is straightforward as they have no obligation to any company employee that is not considered to be their client. If an employee not considered to be within the pool of personnel considered the lawyer’s client were to seek advice of that lawyer, in order to prevent a potential conflict of interest arising, the lawyer should not provide any advice and instead refer the employee to internal legal personnel or suggest that they seek independent external legal advice.

    In-house lawyers will often have both a traditional advisory role and business support role, that will require them to engage in issues and with personnel that an external lawyer would not. In-house lawyers will need to consider whether they are truly engaging in the necessary lawyer–client relationship such that privilege protections can accrue.

  23. 12.

    What should the company consider when interacting with employees represented by an attorney?

  24. Rules of professional ethics dictate that in circumstances where an employee of an external lawyer’s client is legally represented themselves, all communications should be conducted between the representatives. The SRA Solicitors Code of Conduct Outcome 11.1 requires that all third parties are treated fairly. An “indicative behaviour” associated with this suggests that Outcome 11.1 is “likely” to be breached in the event that a lawyer were to contact an employee directly. Although not a legislative rule, it is common practice that this approach is observed.

  25. 13.

    How does this change for employees who are not represented by an attorney?

  26. Lawyers are expected to conduct themselves ethically and fairly at all times, so it follows that lawyers should make clear that they represent the company in an internal investigation and not the employee so as to avoid giving the impression that they are able to advise or offer protection to the employee. There is no formal Upjohn requirement in the UK however. The considerations in relation to legal professional privilege will also be relevant in any interaction with any unrepresented employee who is not part of the client pool.

  27. 14.

    If documents or electronically stored information containing employee information is sent from this jurisdiction to another, for analysis or use in legal proceedings, what are the aspects to be considered?

  28. Data protection laws will vary by country, but in Europe the general position is that employee personal data cannot be sent outside the EEA without complying with the GDPR. In the UK, the GDPR has direct application and sets out the principles that must be complied with if there is to be any transfer of personal data outside the EEA. There is a requirement to comply with all of the principles for processing personal data when transferring data outside the EEA.  

  29. 15.

    What are the company’s public disclosure obligations about the internal investigation in this jurisdiction?

  30. In general there is no requirement to publicly disclose the fact that an internal investigation is taking place. Certain disclosure obligations may arise for companies operating in a regulated sector or those with listings, in particular for investigations that have the potential to have a material impact on the business. There are also certain circumstances in which ongoing monitoring obligations are imposed (for example, as part of a deferred prosecution agreement) in which an authority or law enforcement body is required to be notified of new internal investigations.

  31. 16.

    Are public company statements relating to employee misconduct protected from defamation claims?

  32. Since the introduction of the Defamation Act 2013 claims for defamation have been limited to just those in which the claimant can demonstrate “serious harm” to his or her reputation had been incurred as a result of the defamatory statement. In any such claim, the ability to demonstrate that the statement was substantially true is an absolute defence. While not protected from defamation claims, statements concerning an employee’s role in any misconduct will only be actionable if they cause serious harm to the employee’s reputation and cannot be defended on grounds that the statement was substantially true.

    From the employee’s perspective

  33. 17.

    What responsibilities do directors have in the internal investigation of alleged sexual harassment by senior staff? Are there any restrictions on a director’s role in the investigation?

  34. Under section 199 of the Trade Union and Labour Relations (Consolidation) Act 1992, the UK employment rights organisation ACAS issues guidance concerning disciplinary and grievance procedures but way of a code of practice (the Code). Although a failure to follow the Code will not result in direct liability for any person or organisation, employment tribunals will consider the Code in relevant proceedings.

    Sexual harassment is defined at section 26 (2) of the Equality Act as unwanted conduct of a sexual nature that has the purpose of violating the victim’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for the victim. Allegations of this nature are therefore likely to be sensitive and difficult to report. It is advisable that clear reporting lines for such allegations are set out in internal policies. Appropriate recipients of such a complaint are likely to be members of HR, senior management or a dedicated anonymous reporting function such as an external whistleblowing or grievance helpline.

    An allegation of sexual harassment in the work place can be based on a one off incident, or can be based on a wider culture of harassment. It is therefore important that any internal investigation is sufficiently broad such that it will cover any and all inappropriate behaviour, which may include an assessment of the employer’s culture, policies and values generally.  

    While there are no formal restrictions on a director’s role in such an investigation, it is important that the individual(s) handling the investigation are suitably experienced and sufficiently senior to interview both the complainant (if the report is not made anonymously) and the accused. The Code suggests that role of the investigator must be “fair and objective”, and therefore, any individual involved in an investigation should also consider whether any circumstances of the conduct complained of would make it appropriate for that person to recuse themselves.

    While every attempt should be made to keep the details of the allegation strictly confidential, it is also important to ensure that the accused is given full details of the allegation and an appropriate opportunity to respond. Any physical evidence that is gathered should be retained in order that it may be reviewed again at a later date in accordance with the Code. At the conclusion of an investigation, the Code suggests that a written report be prepared setting out the processes taken, findings made and the recommendations for next steps. If the allegations are found to be proved, appropriate disciplinary action should be taken, but there must also be consideration of further preventative measures that could be implemented in order to ensure the duty of care employers have to their employees is maintained.

  35. 18.

    What is the law, policy and enforcement track record on individual accountability for corporate wrongdoing?

  36. Prior to the introduction of the "failure to prevent bribery" offence in the Bribery Act 2010, corporate prosecutions were very rare as prosecutors had to identify the controlling mind and will of a corporate suspect, and have evidence of those individuals’ involvement in any criminal wrongdoing. Since the introduction of the Act, and the associated deferred prosecution agreement (DPA) powers introduced by the Crime and Courts Act 2013, there have been a number of successful prosecutions and DPAs concluded with corporate suspects. Notably, the recent case of SFO v Rolls-Royce PLC resulted in a DPA with a penalty of almost £500,000,000. See also the case of Jes Staley mentioned above.

  37. 19.

    What is the employee’s obligation to speak with the company in an internal investigation?

  38. There is no legal obligation for an employee to speak with the company or its advisers as part of an internal investigation. To refuse to do so may well be a breach of the terms of their employment contract.

  39. 20.

    What are attorneys’ roles representing the company and representing the employee, and who should explain these roles to the employee?

  40. A company’s external legal representatives will represent the company as an organisation only, and not the employees. There are occasions in which the lawyers may represent both (for example, on a joint defence basis); however, this is a matter for the employee to decide, irrespective of who is paying for that representation. In-house lawyers also act only for the company and not its employees, but may offer legal assistance to employees in relation to the aspects of the business that employee is engaged in. In general, it is the obligation of the lawyer to make clear whom they represent.

  41. 21.

    May an employee appoint its own counsel in an internal investigation?

  42. There is no restriction on an employee who wishes to instruct his or her own counsel, but there is also no obligation on the part of the employer to allow that representative to attend or participate in an internal investigation. In practice, such relationships have the potential to assist the process, but it is important that parameters are clearly defined at the outset, and in particular, that privilege is preserved where possible.

  43. 22.

    Who pays for employee representation?

  44. It is unlikely that an employer will pay for employee representation during the course of an investigation unless that employee appears likely to be prosecuted personally and alongside the company in relation to the misconduct under investigation. In these circumstances, the employee will retain the ultimate decision of whether to accept that representation. There may be provision within their employment contract or other employment-related documents (such as a compromise agreement) that legal fees incurred assisting an investigation and/or in relation to representation during proceedings connected with the conduct of their employment obligations is covered, and there may also be insurance coverage from which the company and employee may benefit in the event of criminal or regulatory investigation by a law enforcement authority.

  45. 23.

    May employees enter into joint defence agreements? With whom?

  46. Employees are free to enter into agreements with each other and their employer in the event that litigation is brought against those relevant parties. The benefits of doing so include preservation of privilege on a common interest basis, a reduction in legal fees and clarity as to overall strategy. Naturally, each case requires a careful assessment of all the facts and the basis for the assertion of a common interest.

  47. 24.

    Do employees have any constitutional or basic legal rights that they can rely on during government and internal investigations?

  48. If a law enforcement authority is conducting a criminal investigation, any interviews under caution must be conducted in accordance with Police and Criminal Evidence Act 1984, which governs the powers of investigation including, arrest, detention, interrogation, entry and search of premises, personal search and the taking of samples. Among the individual’s rights, is the right to silence, as protected by the European Convention of Human Rights (Murray (John) v UK (1996) 22 EHRR 29). However, this right is not absolute and in the UK a jury may be entitled to draw adverse inferences from the silence of a defendant during a caution interview (eg, see sections 34, 35, 37 and 38 Criminal Justice and Public Order Act 1994). If the employer is conducting an investigation, even if it is related to a potential law enforcement investigation, these protections do not apply because it is only an interaction between private parties. See also question 3.

  49. 25.

    What rights do employees who claim sexual harassment have during an internal investigation?

     

  50. The rights of an employee claiming sexual harassment are no different to those afforded to any employee making any complaint of harassment. Under the Equality Act 2010 employers have a duty to ensure that their employees are not harassed. Failure on the part of the employer to take reasonable steps can result in the employee having the right to commence formal proceedings at an employment tribunal. 

    If the employee decides first to raise the complaint internally, they have the right to expect that allegation to be taken seriously and a formal internal investigation to follow. That investigation should be carried out in accordance with the ACAS Code (as set out above), which ensures that the employee should be given an opportunity to have the allegations heard in a manner that takes account of the potentially difficult and emotional circumstances. 

    The employee can also expect all details to be kept confidential insofar as possible, and while this does afford a degree of protection for the employee, there is no right in the ACAS Code for the employee to see the interview notes, statements or other evidence gathered during the investigation. This is not the case if formal tribunal proceedings are issued, or if the employee was to make a subject access request under data protection legislation, where non-privileged documents and evidence can be disclosed.

    During the course of the investigation, the employee can request that measures are put in place to limit interaction with the accused in so far as possible. The Code states that temporary measures such as a temporary transfer of the employee may be appropriate if the circumstances of the business allow. As set out at question 9, any retaliation or reprisals that follow the making of such an allegation are unlawful and actionable.

  51. 26.

    Who owns the documents and electronically stored information within employees’ possession or control and how can employees protect their privacy rights in this context?

  52. Generally, employers have the right to search company property, which can include office space, company emails and electronic information sent across a company network. This right is curtailed when an employee enjoys a reasonable expectation of privacy based on a company’s policies or general practices. To ensure confidential treatment of personal information, employees should understand and abide by the company’s privacy policies and procedures as well as avoid using company property and networks to send personal communications.   

    The recently introduced European General Data Protection Regulation came into force in the UK on 25 May 2018. This regulation strengthens the protections of personal data and its use. In this context, the key changes to be aware of are that, in principle, an employee’s personal data cannot be sent outside of the European Economic Area unless the receiving nation has an adequate level of data protection or if certain other criteria are met that would permit the transfer. If such transfers are necessary, there are a series of exceptions to the prohibition, chief among which is obtaining the individual’s consent.

  53. 27.

    What are the employee’s responsibilities if there is a parallel civil proceeding against the company or against the employee?

  54. Parallel proceedings against a company or an employee can create privilege and conflict of interest issues. Employees must balance their own personal legal interests with their obligations to their employer. It will often be the case that witnesses of fact in an internal investigation can lend assistance and support to the defence of their employer in the context of parallel civil litigation. However, employees must be aware of their rights against self-incrimination and for the potential to invite personal civil claims (where appropriate) by virtue of agreeing to support their employer in this way. It would be prudent therefore to confirm, in advance, with one’s employer what precisely are the obligations on both parties. In particular, in relation to fees, common interest privilege sharing, and existing contractual obligations concerning the provision of support and assistance during the course of civil litigation concerning the organisation and its employees. 

  55. 28.

    What should employees do if they are sued by shareholders or other private parties as a result of an investigation?

  56. If an employee is sued personally they should seek the advice of personal and company counsel to discuss how best to proceed. If the employee has been named in a lawsuit, the interests of the company and employee may diverge and it is important the employee have personal counsel. See question 19. 

  57. 29.

    What are the employees’ responsibilities to comply with law enforcement investigations, subpoenas and searches?

  58. Employees are legally required to comply with notices issued by law enforcement bodies, such as information or document request notices issued by the UK Serious Fraud Office under section 2 of the Criminal Justice Act 1988, warrants, and similar court orders. If personally served with such notices or orders, employees should consult legal counsel to determine their scope and validity. Similarly, if served with a warrant, an employee should allow the investigators to search the area specified in the warrant unimpeded subject to the employee's rights. Law enforcers in the UK have a range of powers to enter and search a premises, including business premises. It is prudent for organisations to have clear policies and internal reporting procedures to assist employee responses to such an event. 

    Law enforcement may also approach an employee and request voluntary cooperation. If there is no formal notice or order of the court, the employee is under no obligation to cooperate. In such circumstances it is often best for the employee to politely decline to answer any questions during such a contact until the employee is able to confer with company or their own personal legal counsel; information disclosed to law enforcement may be used against the employee or against the company in an enforcement action. 

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Questions

    The company’s investigation

  1. 1.

    How does the company retain its privileges, including the attorney-client privilege, when interacting with employees in an investigation?


  2. 2.

    How does the company retain work product privileges when interacting with employees?


  3. 3.

    What claims may an employee bring against the company during an investigation? How can the company protect against them?


  4. 4.

    What agency procedures or whistleblower rules should the company be aware of in this jurisdiction?


  5. 5.

    What are the considerations when conducting without notice interaction with company employees in an investigation?


  6. 6.

    What should the company know about the anti-bribery and anti-corruption laws in this jurisdiction? How, if at all, does the Voluntary Self Disclosure and FCPA Pilot Program apply to this investigation?


  7. 7.

    How do labour laws, collective bargaining agreements, and the procedural pre-emptions affect the internal investigation?


  8. 8.

    Does this jurisdiction recognise the "employment at will" doctrine? Are there exceptions to this doctrine?


  9. 9.

    Does this jurisdiction recognise claims for unlawful retaliation by an employer against a whistleblower?


  10. 10.

    Who may represent the employees in an investigation, and what are the company’s obligations to facilitate their representation?


  11. 11.

    What obligations does external counsel to the company have towards employees that are not considered to be clients of the attorney? Is this the same for in-house counsel?


  12. 12.

    What should the company consider when interacting with employees represented by an attorney?


  13. 13.

    How does this change for employees who are not represented by an attorney?


  14. 14.

    If documents or electronically stored information containing employee information is sent from this jurisdiction to another, for analysis or use in legal proceedings, what are the aspects to be considered?


  15. 15.

    What are the company’s public disclosure obligations about the internal investigation in this jurisdiction?


  16. 16.

    Are public company statements relating to employee misconduct protected from defamation claims?


  17. From the employee’s perspective

  18. 17.

    What responsibilities do directors have in the internal investigation of alleged sexual harassment by senior staff? Are there any restrictions on a director’s role in the investigation?


  19. 18.

    What is the law, policy and enforcement track record on individual accountability for corporate wrongdoing?


  20. 19.

    What is the employee’s obligation to speak with the company in an internal investigation?


  21. 20.

    What are attorneys’ roles representing the company and representing the employee, and who should explain these roles to the employee?


  22. 21.

    May an employee appoint its own counsel in an internal investigation?


  23. 22.

    Who pays for employee representation?


  24. 23.

    May employees enter into joint defence agreements? With whom?


  25. 24.

    Do employees have any constitutional or basic legal rights that they can rely on during government and internal investigations?


  26. 25.

    What rights do employees who claim sexual harassment have during an internal investigation?

     


  27. 26.

    Who owns the documents and electronically stored information within employees’ possession or control and how can employees protect their privacy rights in this context?


  28. 27.

    What are the employee’s responsibilities if there is a parallel civil proceeding against the company or against the employee?


  29. 28.

    What should employees do if they are sued by shareholders or other private parties as a result of an investigation?


  30. 29.

    What are the employees’ responsibilities to comply with law enforcement investigations, subpoenas and searches?