Not every workplace complaint needs a lawyer standing over the process, but getting the timing wrong in either direction, bringing in legal counsel too late, or treating every minor issue as requiring one, can genuinely hurt your organisation. This guide walks through when it actually makes sense for an employer to involve a lawyer in a workplace investigation.
Most Straightforward Investigations Do Not Need One From the Outset
For a routine performance issue, a minor policy breach, or a straightforward disagreement between colleagues, a well-trained HR team following established internal procedures, informed by resources like the Tripartite Advisory on Managing Workplace Harassment, can usually manage the investigation properly without needing a lawyer involved from the very beginning.
When the Allegation Itself Is Genuinely Serious
If the complaint involves allegations of a genuinely serious nature, such as sexual harassment, discrimination, fraud, or conduct that could constitute a criminal offence, involving a lawyer early helps ensure the investigation is conducted properly from the outset, with appropriate attention to both the complainant’s and the accused’s rights, and with a clear understanding of how the investigation’s findings might later be used or scrutinised.
When There Is a Genuine Risk of Legal Action
If you reasonably anticipate that the outcome of an investigation, whatever it turns out to be, could lead to legal action, whether an employment tribunal claim from the accused employee if disciplined, or a claim from the complainant if the matter is not properly addressed, involving a lawyer early helps ensure the investigation itself is conducted in a way that will hold up to later scrutiny.
When the Person Under Investigation Is Senior or Has Significant Influence
Investigations involving a senior executive, a founder, or someone with significant informal influence within the organisation carry particular complexity, both in terms of managing potential conflicts of interest in how the investigation is conducted, and in terms of the genuine business and reputational stakes involved. A lawyer’s guidance here helps ensure the process remains genuinely fair and is not, or does not appear to be, compromised by the subject’s seniority.
When Legal Privilege Over the Investigation Might Matter
Having a lawyer properly involved in directing an investigation can, in appropriate circumstances, mean certain investigation materials attract legal privilege, protecting them from being disclosed in later proceedings. This is a genuinely technical area, and simply having a lawyer loosely involved does not automatically create this protection, so it is worth discussing directly with your lawyer how to structure the investigation if this protection genuinely matters for your situation.
When Multiple Complainants or a Pattern of Behaviour Emerges
If an investigation reveals, or a complaint suggests, a broader pattern involving multiple employees rather than an isolated incident, this significantly raises the stakes and complexity, both in terms of properly investigating the full scope of the issue and in terms of the organisation’s overall legal exposure, making early legal involvement considerably more valuable.
When You Are Unsure Whether the Conduct Even Falls Within Your Policy
Sometimes the genuine question is not what happened, but whether what happened actually falls within the scope of your existing workplace policies or relevant legal protections at all. A lawyer can help you properly interpret this before the investigation proceeds too far down a particular path, avoiding wasted effort or an investigation framed around the wrong questions entirely.
When the Investigation Might Lead to Termination
If a possible outcome of the investigation is terminating the employee’s contract, involving a lawyer beforehand helps ensure the termination, if it does occur, is carried out properly and defensibly, reducing the risk of an otherwise justified decision being successfully challenged purely because of a procedural misstep along the way.
Balancing Legal Involvement With a Genuinely Fair Process
Even when a lawyer is involved, it is worth remembering that the underlying goal remains a genuinely fair, properly conducted investigation, not simply a legally defensible one on paper. Employees, both the complainant and the person under investigation, generally sense when a process feels like it is being managed purely to protect the organisation legally, rather than to genuinely get to the truth, and this can undermine trust regardless of how legally sound the process technically is.
Bringing a Lawyer in Partway Through an Investigation
If you begin an investigation internally and it becomes more complex or serious than initially expected, it is entirely reasonable to bring in a lawyer partway through, rather than feeling committed to finishing entirely without one simply because that is how the process started.
Training Your HR Team to Recognise When Escalation Is Needed
Beyond having a clear threshold on paper, it is worth investing in genuine training for your HR team so they can recognise, in real time, when a seemingly routine complaint is actually beginning to show signs of something more serious, such as an unexpected admission, a pattern connecting to a previous complaint, or facts suggesting genuine legal exposure. Catching this shift early, rather than only recognising it once the investigation is well underway, gives you the best opportunity to bring in legal support at the genuinely right moment.
The Cost of Involving a Lawyer Relative to the Cost of Getting It Wrong
Legal fees for guiding a workplace investigation are a genuinely modest cost when weighed against the potential cost of a mishandled process, whether that is a successful legal claim against the company, reputational damage, or the broader cost of a workplace culture where employees no longer trust the organisation to handle serious complaints properly. Viewed this way, the decision to involve a lawyer for a genuinely serious matter is rarely a difficult one once the actual stakes are properly considered.
Building a Clear Internal Threshold in Advance
Rather than deciding case by case under pressure each time a complaint arises, it is worth developing a clear internal guideline in advance, agreed with your usual employment lawyer, setting out the kinds of complaints that should automatically trigger early legal involvement. Having this threshold established calmly, before a genuine crisis is unfolding, leads to more consistent, better-considered decisions than working it out fresh under pressure every time a serious complaint lands.
Frequently Asked Questions
Can the same lawyer represent the company throughout an investigation and also advise the employee under investigation?
No, this would create a genuine conflict of interest, since the company and the individual employee may have different, potentially competing interests, so the employee under investigation should have their own separate access to advice if they wish to seek it.
Does involving a lawyer in an investigation slow the process down significantly?
This depends on the specific lawyer and the complexity of the matter, though a lawyer experienced in workplace investigations can often help keep a complex matter moving efficiently, rather than necessarily adding significant delay.
Should smaller companies without in-house legal support still consider engaging a lawyer for a serious workplace investigation?
Yes, company size does not reduce the genuine legal stakes of a serious workplace complaint, so smaller companies without in-house legal resources should still consider engaging external counsel for genuinely serious matters.
Can an external HR consultant serve the same function as a lawyer in a workplace investigation?
An external HR consultant can bring valuable investigative expertise and independence, though they do not provide the same legal privilege protections or legal risk assessment that a lawyer specifically can, so the two roles serve somewhat different, complementary purposes.
Is it appropriate to tell the employee under investigation that a lawyer is involved in the process?
This is generally a reasonable and often expected part of transparency in a properly conducted investigation, though the specific approach to communicating this should be discussed with your lawyer to ensure it is handled appropriately for your specific situation.
Thank you for sharing this article...
About the Author: Randy Alta
