What issues should you, as the employer, consider straight away?
Consider how to conduct the investigation lawfully, its scope and who is going to lead it and particularly whether legal privilege might apply. In particular:
- be aware of the differences between jurisdictions, as these will determine the approach you take. For example, in many common law jurisdictions (such as the US, the UK and Australia), the scope of the obligation to disclose documents to your opponents in litigation is typically wide and the scope of legal privilege protection is also wide as a result. In civil law jurisdictions (such as France or Germany), the scope of document disclosure in litigation is narrow and so is the protection afforded to communications with lawyers. In markets such as Japan, the risk of a counterparty or third party obtaining access to an internal document in litigation is relatively low, and there is no concept of legal privilege
- can you and should you suspend the employee? (see Should or must the employer suspend employees accused of misconduct during the course of the investigation?)
- are you required to make any disclosure to a regulator or public authority? (see Is it necessary to make any immediate notifications to a regulator?)
- act now to preserve evidence
- be mindful of any time limits
- consider taking external legal advice