Employee issues: dealing with employees targeted by the inspection
Depending on the type of investigation, there may be criminal or administrative penalties for individuals who have been involved in the conduct being investigated.
It is possible that there may be a conflict of interests between the organisation and an individual employee. It may be appropriate to suggest that such individuals obtain independent legal advice. It will usually be important to make clear that individuals cannot be represented by the same lawyers as the organisation. The different legal teams will need to coordinate carefully.
You must also ensure that any implicated individuals do not have roles in strategy or decision making committees that are dealing with the investigation.
While taking immediate disciplinary action against the individual(s) whose conduct has led to the investigation may be tempting, it is advisable to consider this very carefully. Deciding upon appropriate disciplinary action can be difficult, since the employee’s on-going co-operation may be required to defend both the regulatory proceedings and any subsequent litigation. In addition, implicated employees can sometimes turn whistleblower, potentially undermining your ability to either defend the accusations or benefit from lenient treatment by co-operating with the investigation. Often a compromise may need to be reached.
You may also need to consider data protection issues because in many cases you will need to gather and review documents held by any employee being investigated.
Consider whether the employee’s conduct could lead to subsequent investigations and litigation.