Williams HR Law LLP

To Disclose or Not to Disclose: Privilege in Workplace Investigations

September 27, 2017

[vc_row][vc_column width=”1/4″][vc_single_image image=”1868″ img_size=”large”][/vc_column][vc_column width=”3/4″][vc_column_text]Workplace investigations are key in many areas of human resources law. Employers may conduct workplace investigation because they have a legal obligation to do so, because they have committed to do so in their own workplace policies, because conducting a workplace investigation may help mitigate risk, or for any combination of these reasons.

The findings of a properly conducted investigation aid employers in determining how they should respond to employee misconduct, and other situations that may arise in the workplace.

In many of these circumstances, employers may wish to keep the findings of a workplace investigation confidential, either to protect employees’ privacy, or in order to minimize legal exposures and liabilities. Since communications between lawyers and clients are privileged, employers will often have internal or external legal counsel conduct the investigation in an attempt to claim privilege over the entirety of the investigation. However, despite many employers’ belief to the contrary, having legal counsel conduct a workplace investigation does not guarantee that privilege can be claimed over the investigation.

In a recent case, De Francesca v Centric Investigation Services Inc. (“De Francesca”), the Human Rights Tribunal of Ontario (the “HRTO”) considered whether a third-party investigator, who was a lawyer, could be required to testify. The investigator was retained to investigate a sexual harassment complaint filed by one of the applicant’s colleagues. The applicant summoned the investigator as a witness, and the respondent objected on the basis, among other reasons, that the testimony would be subject to solicitor-client privilege.

What is a workplace investigation?

A workplace investigation is a fact-finding process during which an investigator, either internal or external, collects the relevant information about a specific complaint or incident by interviewing relevant parties and collecting documents. The investigator then reviews the evidence information gathered to making findings with respect to the matter under investigation. Some investigations culminate in an investigation report of these findings. Not every investigation takes the same form, even if they are all conducted by or for the same employer. The details of each investigation depend on the nature and severity of the complaint or incident being investigated, and on the practical realities of each particular workplace.

What is privilege?

Two types of privilege can attach to aspects of workplace investigations: solicitor-client privilege and litigation privilege. Solicitor-client privilege, often referred to as “legal advice” privilege, is the broader of the two and is meant to protect communication between a client and lawyer in order that clients are able to seek and obtain legal advice confidentially. Solicitor-client applies to a communication if:

  1. It was between a client and solicitor;
  2. It was one in which legal advice is sought or offered;
  3. It was intended to be confidential; and
  4. It was not meant to unlawful conduct.

Litigation privilege can apply if:

  1. Litigation was a reasonable prospect at the time when the material was produced; and
  2. The prospect of litigation was the dominant purpose for producing the material.

Therefore, litigation privilege will only attach if the communications are made because of existing or contemplated litigation, and not just to provide general legal advice. While litigation does not have to be the only possible purpose to claim litigation privilege, it must be the main one.

The decision in De Francesca

In De Francesca, the HRTO found that communications relating to a workplace investigation are not subject to solicitor-client privilege just because the investigator happens to be a lawyer. The employer argued before the HRTO that communications relating to the investigation were privileged because the investigator-lawyer was retained to conduct an investigation and provide a legal opinion. The HRTO found that there was nothing in the documentary evidence suggesting that the investigator-lawyer was also retained to provide legal advice based on the investigations’ findings. Rather, there was evidence that the investigator had sent the applicant a letter stating that she was an independent investigator retained to investigate the sexual harassment complaint. For these reasons, the HRTO found that the investigator-lawyer’s testimony about the investigation would not be subject to solicitor-client privilege.  

What does this mean for employers?

Whether a workplace investigation is solicitor-client or litigation privileged depends on the way in which and the purposes for which an investigation is conducted rather than simply the identity of the investigator. Employers should not assume that a workplace investigation will be privileged just because counsel is investigating. Where a lawyer conducts an investigation in the same way that a non-lawyer investigator could, that is, investigating events to make findings of fact but not for the purposes of providing legal advice, solicitor-client privilege will not protect the contents of an investigation report.

However, if the employer wishes to assert solicitor-client privilege, the investigator should be a lawyer, not, for example, the employer’s Human Resources manager, and ideally the investigation should be conducted by external counsel. The investigator-lawyer should have a mandate that is not exclusively fact-finding, but includes providing legal advice, and this mandate should be clearly and explicitly outlined in a retainer letter. Notably, even where an investigation is commissioned for the specific purpose of obtaining legal advice, the findings themselves in an investigation report may not be privileged.

Employers should also consider whether asserting privilege is actually in their interests. Although there are many reasons why employers may want to keep an investigation privileged, particularly when the report may expose the employer to legal liabilities, there are incidences where maintaining privilege over the investigation report is counterproductive. If the investigation is properly conducted and the report clearly supports the employer’s position, disclosing the report may be in the employer’s interest.

This blog is provided as information and a summary of workplace legal issues.

This information is not intended as legal advice.