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Workplace Investigations and Culture Reviews<br />

Workplace Investigations and Culture Reviews

Workplace Investigations and Culture Reviews

The Clifford Chance global employment team supports (and where appropriate runs) sensitive and strategic workplace investigations and reviews – from proactive cultural assessments to incident-specific responses.

Our clients need to ensure they are prepared for stakeholder scrutiny on workplace issues: whether to pre-empt an external review, enhance their governance, show they are taking appropriate steps to protect their employees, preserve value or to crisis manage a sensitive grievance or whistleblowing allegation. We regularly advise on multi-jurisdictional investigations and reviews. Aspects of culture are for many jurisdictions within the regulatory perimeter for financial institutions and corporate enterprises (including as a result of ESG diligence and reporting regulation). Employee conduct review can be a mandatory part of any regulatory/ government investigation and remediation - and so we can structure reviews to address those expectations and prevent or manage further intervention.

Our global team have a wealth of expertise in employment, data protection, equality, whistleblowing, compliance and regulatory law issues that arise in the context of workplace investigations and culture reviews (including in a transactional setting) – and handling practical investigation management and governance (where appropriate, to put in place appropriate frameworks for independence and reporting).

Culture as it pertains to employees is of course only one strand of culture - and is not just an HR responsibility. We find that measurement and management of cultural risks and opportunities are most effective when drawn together across different functions and specialisms.

Our full-service offering

strategic-advice

Strategic advice

Investigations and reviews can be fast-moving, high-profile and high-stakes – with the potential for significant reputational, legal, regulatory and financial impact. They can also be a key tool for diligencing and remediating organisational approaches to cultural matters such as diversity and inclusion, wellbeing and non-financial misconduct – and an opportunity to mitigate legal liability or enhance stakeholder engagement.
collaborative-team

Collaborative team

We are experienced in working with internal client teams and stakeholders (including HR, legal, co-sec, compliance, risk, audits, boards, and communications/ corporate affairs) in the running of considered and swift investigations and preparation of reports. We also collaborate with members of our other practices including Regulatory Investigations and Financial Crime where appropriate. Our cross-border team helps our global clients who need to navigate issues in investigations spanning different jurisdictions. Many individuals in our teams are thought-leaders in evolving investigations practice, contributing to industry insight (for example, the Global Investigations Review).

 
support-at-every-stage

Support at every stage

We can provide you with vital support to navigate the key legal and practical considerations at each stage of the investigation or review, from triage to outcome, and to manage the associated legal, commercial and reputational risks.


Throughout, we seek to use methodology that will increase efficiency and reduce costs (for example, blending senior legal expertise with our established paralegal-led team in Newcastle and AI technologies).
risk-management

Holistic risk management

We can also support your business with standalone or post investigation thematic reviews to identify latent areas of risk and appropriate remedial steps, pinpointing potential vulnerabilities and providing you with a clear understanding of any potential issues you may face – and to help mitigate those for the future (which may bring protection in the event of future employment claims).
governance-frameworks

Governance frameworks

Where appropriate we can also support with introduction or revision of appropriate governance frameworks depending on your objective – whether that is to provide accountability, enhance your stakeholder narrative or provide a basis for workplace change.
 
independence

Independence

We know that demonstrably independent fact-finds can be key and that best practice in this area continues to develop. Our team are mindful of the importance of independence and are used to pro-actively assessing routes to managing conflicts or perceived conflicts in line with the latest regulatory risk issues. Where appropriate we can work with you in putting in place steps to address any concerns (for example, through choice of investigating personnel and decision-makers or the use of internal information barriers).

Our Global Investigations and Culture Review Experience

Clients we have successfully worked with on complex workplace investigations and culture reviews include leading global businesses (both private and public) and financial institutions. We have extensive experience of successfully navigating clients through criminal/regulatory driven investigations (addressing employee data privacy, representative bodies, overall employment considerations and hived-off employment investigations) alongside our Regulatory Investigations and Financial Crime colleagues; conducting employee-focused investigations (including disciplinary reviews, code of conduct reviews, infringements of employment/ discrimination laws, accountability reviews and retaliation reviews); handling Whistleblowing investigations; and carrying out Culture and ESG reviews or gap analysis. Our recent experience includes working with:

  • an international private equity firm with an investigation involving accusations of sexual harassment;
  • an international PLC, on a cross-jurisdictional investigation in the UK and Africa. Our team triaged and scoped whistleblowing concerns raised, engaged with the complainants and senior stakeholders, interviewed witnesses and (where appropriate) worked with local counsel and other relevant third parties. This required extensive management using the firm's governance procedures, as well as recommendations for remediation;
  • a major international natural resource company on a number of sensitive employee-related investigative and pre-investigative matters;
  • a multinational pharmaceutical company on an internal investigation regarding compliance issues raised through the whistleblowing channel, that led to the termination of a significant number of employees;
  • an international financial services firm on a series of sensitive incidents raised, alleging both personal detriment and organisational ethical failings;
  • a UK financial institution on a pre-emptive review into elements of culture and conduct so that they could assess if they were reputationally and legally exposed to allegations of impropriety (and whether any organisational changes were required);
  • a global manufacturer on preparation and conducting of multiple investigations as a result of employees' compliance complaints on working conditions and conflicts of interest.

Practical support with

Triaging critical initial steps

Triaging critical initial steps (including workforce, reputation and stakeholder management). This may include, in the case of particularly sensitive investigations, assessing whether police or third-party involvement is the appropriate route, or putting independence safeguards in place.

Scoping an effective investigation

Scoping an effective investigation or review strategy to attain an appropriate resolution. This approach will differ depending on the reporting framework and whether there is a contentious situation. Our work or elements thereof may be conducted on a privileged basis. 

Safeguarding and obtaining materials

Safeguarding and obtaining the necessary materials in a legally compliant way and conducting the investigation (from a desktop review to focus group/ individual interviews).

Managing ongoing internal and external stakeholder engagement

Managing ongoing internal and external stakeholder engagement (covering employees, board or relevant committees and regulators), including in respect of findings and recommendations.

Bespoke governance framework revisions

Bespoke governance framework revisions, wider cultural thematic review and training to mitigate future risk (including: management cascades; employee communications and questionnaires; internal policies and codes of conduct, board and committee terms of reference, procedures and training).

Reporting and disclosure

In some cases, there may be mandatory or voluntary disclosure of actions taken in investigations or reviews (for example, in Annual Reports, Whistleblowing Champion reports, under ESG reporting obligations (including to ratings agencies)). Our teams can advise on the obligations and narrative, not only at the point of publication, but also planning for how to arrive at outcomes you wish to report on in future years. For example, if a review identifies that the desired culture in respect of DEI has not been embedded, we can advise on steps lawfully to implement and deliver against diversity targets, manage talent pipelines and obtain views from the workforce - and to be able to report on actions and outcomes.  

Insights

Culture and Corporate Governance

What are the risks for Corporate and Fis in a poor culture and why is this a legal issue?
employment-law-guide

Clifford Chance Global Employment Law Guide / Employment App

Our easy-to-use digital guide is updated quarterly and provides an overview of law in a large range (40) of key jurisdictions, including a separate section on EU law and our Employment team's global briefings and updates.

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Spotlight on AI in Workplace Investigations and Culture Reviews: Transforming the Approach

The use of artificial intelligence ("AI") in workplace investigations and culture reviews is rapidly evolving, offering new opportunities for efficiency, insight and cost-effectiveness.

With advancements in AI, we are starting to see how leveraging AI tools will be able to create advantage in both incident-specific investigations and proactive reviews. Tools enable the testing of investigation hypotheses and the use of core internal frameworks (e.g. codes of conduct) as an automated benchmark of behaviour against which to assess data gathered. The combination of practitioner expertise to prepare well-drafted prompts, the volume of data that AI tools can assess at speed, and human judgement to interpret results can augment efficiency and insight. This delivers a swift, balanced output to allow employers to move forward with the relevant workplace process.

How AI is Changing the Landscape

AI is now capable of analysing vast quantities of data, identifying patterns and generating nuanced outputs based on carefully crafted prompts. At Clifford Chance, we are deploying a suite of AI tools (both our own in-house products and those from leading external providers) to support clients in investigations and culture reviews.

Our approach to using AI is layered and pragmatic. AI will not be suitable for all matters, and we are committed to using the right tool for the right task. AI can be used at each stage of an investigation, from scoping and document review to interviews and report drafting. Crucially, all AI outputs are reviewed and refined by our lawyers before moving to the next layer, with final analysis and recommendations remaining human driven and therefore legally robust.

Key Tools in Practice

These include:

  • CC Assist: Our private, secure AI tool, powered by OpenAI models, was built by and for Clifford Chance. It can process lengthy and complex documents, summarise factual findings and assist in drafting investigation materials. The advanced information processing and interpretation capabilities of this tool produces higher-quality legal work and carries out other tasks in a much shorter time frame, which can translate into cost and time savings for our clients.  
  • RelativityOne's "aiR for Review": This generative AI tool is transforming large-scale document review, replacing traditional human first-level review ("1LR") at a reduced cost. A key benefit of aiR for Review is that it provides on an automated basis clear rationales for its decisions and highlights relevant parts of documents that informed its rationale. In exercises involving a large number of lengthy documents, the advantage is clear. This tool is now being used in live matters involving sometimes millions of documents. Continuous active learning ("CAL"), the technology-assisted review process by which a human teaches software to find documents meeting certain criteria, has been used in disclosure for some time. However, aiR for Review shows how document review is being further transformed beyond CAL.
  • Other Emerging Solutions: We are also testing next-generation solutions that allow users to interrogate large pools of documents with complex queries, such as identifying inconsistencies in witness evidence, creating visual chronologies or mapping knowledge across an organisation. These tools are likely to be game changers in large-scale investigations and culture reviews.

Benefits and Safeguards

The benefits of using AI tools are clear. The cost efficiencies can be significant. Exercises are also on accelerated timelines as these tools have the capability to process thousands of documents per hour. In terms of output, we are seeing enhanced consistency in analysis.

Importantly (particularly for processes potentially impacting individuals), every AI-assisted process is underpinned by robust human oversight, with all outputs verified and contextualised by our legal teams, which is essential for not only accuracy and data security but also reassurance for clients.

We are guided by five core principles in our use of AI: acting with integrity, designing for confidentiality and privacy, using AI responsibly, building securely and engaging openly with clients about the capabilities and limitations of these tools. Read more about our principles governing AI use here.

Looking Ahead

As highlighted above, AI will not be suitable for every matter. However, we have observed that clients have become more open to innovation, and as regulatory expectations around workplace culture intensify, the strategic use of AI in investigations and culture reviews is set to become standard practice. Our investigations teams are committed to helping clients navigate this evolving landscape, combining innovative AI solutions with legal expertise to deliver practical, robust results that stand up to regulatory and stakeholder scrutiny.

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