Preserving confidentiality during employment investigations: making the right calls

For legal observers, one of more interesting features of the investigation into the recent conduct of Dominic Raab MP as a minister was its approach to the confidentiality of the complainants. Of course, it was hardly a run of the mill employment investigation (not least because ministers are office holders, not employees) but its approach to junior staff who had made complaints has wider relevance.

As the investigation report by Adam Tolley KC states, the terms of reference required that all information given to him as part of the investigation should be provided in confidence. That required keeping the identities of those involved and the information provided confidential, both during the process and afterwards. That is the standard approach in most internal employment investigations.

However, in this case it was not possible to avoid naming some of those involved in the final report, which was made public as well as being given to Mr Raab. The lengthy introduction to the report explains that (with minor exceptions) the information was given on an attributable basis to ensure that Mr Raab had a fair opportunity to respond. In addition, participants were told in advance that Mr Tolley “would need to consider carefully, in light of the evidence as a whole, whether it was necessary to identify individuals” in his report. In the end, he decided that two people, both senior civil servants, should be named. In addition, all the information gathered as part of the investigation was made available to the Prime Minister, to whom the report was addressed.

While most employment investigation reports are not published, similar issues arise as to whether it is possible to provide complete anonymity for complainants and others giving evidence. In general, the more detailed the information included in the report, and the more senior the individuals giving evidence, the more difficult it will be to withhold their identities while being fair to the person being investigated and maintaining wider confidence in the integrity of the process.