Many employers (and employees) are unaware that a recent case means that an employment investigation could be deemed wholly invalid, unless it is conducted by an independent lawyer or a licensed private investigator.
D, E and C Limited [2020] NZPSLA (4 June 2020) addressed the issue of whether those carrying out workplace investigations for employers are considered private investigators. The case clarified that those hired to act as independent investigators are “private investigators” and must either be licensed or be a lawyer holding a current practicing certificate.
This decision has significant implications for both employers and investigators alike. Employers engaging an investigator who is not licensed, or does not hold a practicing certificate risk:
- having their investigation findings thrown out; or
- breaching good faith obligations.
The case’s scope was limited to external investigators only, so in-house HR teams would seem to be presently exempt from this obligation. However, if an employer relies on an in-house HR team investigation to support a dismissal (rather than an external investigation carried out by an appropriately qualified investigator) this might be seen as unjustified. Best practice is to engage a suitably qualified investigator in situations of serious misconduct or potential conflicts of interest. It is crucial for employers to verify that the investigator possesses the required licence or qualification in such cases.
If you need assistance with an independent investigation, contact K3 Legal Director, Chris Lee, Or Senior Consultant at K3 Consulting, Karyn Gould.
