Introduction

Workplace investigations are no longer a routine HR exercise. They are facing heightened scrutiny, including from regulators who are paying more attention to the ways in which investigations are carried out from a governance and ethics perspective, particularly by in-house legal teams. This has led to investigations increasingly becoming a cross‑functional undertaking involving stakeholders from Legal, HR, Compliance and Communications, especially where the stakes are high and sensitive matters of culture, conduct and governance are concerned. Businesses nowadays often seek independent review or investigation to avoid conflicts of interest and to ensure objectivity, impartiality and integrity in the output. While beneficial in some respects, the developing trend for “Maxwellisation” – giving those under investigation a chance to respond to adverse findings before a report is finalised – can, however, compromise objectivity and undermine the investigation process. It can be difficult to strike a balance between fairness (especially where senior stakeholders are concerned) and the need for a timely, clear and authoritative report that holds parties to account. 

The risk landscape for workplace investigations is also evolving because of an increasing focus on tackling sexual harassment in the workplace and legal and regulatory restrictions on the use of confidentiality clauses or non-disclosure agreements in the UK. Gone are the days when a potential workplace scandal would be “swept under the carpet” or when the knee-jerk reaction to dealing with a disgruntled whistle-blower would be to exit them with a substantial settlement. Businesses and their stakeholders are increasingly focused on culture, which is driving a trend in greater transparency and accountability in tackling workplace issues. 

The rapid growth of AI use by employees adds a further layer of complexity to workplace investigations – AI-generated complaints are increasingly common, the burden of review is heavier, and it is harder to assess credibility. It also raises novel data privacy and confidentiality risks, for example, where employees upload company confidential information and personal data to open-source AI tools. 

This article explores recent trends and developments in workplace investigations in the UK in 2026.

The New Normal? Using External Investigators

Boards and senior leaders are placing greater emphasis on handling sensitive allegations such as racism, sexual harassment, and other serious issues in a way that reflects their organisation’s cultural values and risk tolerance and is demonstrably robust and transparent. Ineffective responses to whistle-blowers can result in loss of revenue, material reduction in share price, shareholder unrest, brand devaluation, litigation by employees and/or third parties, unplanned senior exits, regulatory investigation and enforcement action and even parliamentary scrutiny.

This change in emphasis has led to a marked increase in workplace investigations involving independent investigation or review by a third party, such as a law firm or barrister with specialist expertise in workplace investigations and familiarity with evidential standards and procedural fairness. The engagement of an external investigator can help to demonstrate that a business took the matter seriously, sought an impartial assessment and acted responsibly. This approach also avoids a perception of conflict about who inside the business can credibly investigate and determine the issues free from influence – it gives relevant stakeholders such as employees, customers, regulators and shareholders confidence that concerns have been properly investigated and that decisions are not tainted by bias. Third-party investigators are often better placed to make adverse or sensitive findings by virtue of their relative objectivity, and are therefore less susceptible to internal pressures or organisational politics or dynamics. They are able to follow the evidence wherever it leads without fear of retaliation or career consequences. Importantly, the external investigator’s role is often confined to establishing the facts and making findings, with responsibility for decision-making and outcomes remaining with the business, which can help to preserve appropriate governance and accountability.

This trend has been accelerated by the focus on whistle-blowing and non-financial misconduct in heavily regulated sectors such as financial services and healthcare, and an ESG-driven emphasis on culture, purpose and values, with boards increasingly attuned to the governance, supervisory and reputational consequences of flawed internal processes. One issue that regularly arises in the area of external appointments (particularly where lawyers are carrying out a third-party external review) is whether that lawyer can or should also provide privileged legal advice in relation to the legal risks at the heart of the matter. This is a complex and fact-specific issue, but a general observation is that the optics of having the same individual conduct an external investigation while also providing strategic and legally privileged advice on the legal risks at play can, in certain circumstances, be problematic. It is now generally accepted that these roles should be separated, rather than requiring the same lawyer to wear two hats. Practitioner investigators are also increasingly mindful of their professional obligations in this context, including the need to preserve independence and manage conflicts in accordance with the SRA’s guidance on investigations.

Can Legal Professional Privilege Apply in Workplace Investigations?

As the trend for engaging external lawyers as investigators has accelerated, an important question that arises is whether the investigation can or should be protected by legal professional privilege. Legal professional privilege in the UK covers: (i) legal advice privilege; and (ii) litigation privilege. Workplace investigations can, in some circumstances, be covered by legal professional privilege, although establishing and maintaining privilege over the various aspects of a workplace investigation (such as interview notes, documents and the report itself) can be challenging in practice. Certainly, legal advice privilege is arguably unlikely to attach to all documents produced, created or collated as part of an investigation and it can also be lost where documents are shared too widely or outside of the client group.

Where a business wants to assert privilege over an investigation, it is important to decide this at the outset and then to proceed in a carefully structured way. This will often include putting in place written terms of reference and information-sharing protocols. For example, documents should be clearly marked as “Privileged and Confidential” and access should be restricted to those within the client group. In order to be covered by privilege, interview notes should not simply record the matters discussed – they will also need to include an element of legal advice, such as an assessment of the evidence.

A business should restrict and define its client group for the purposes of an investigation – that is those who are giving instructions and receiving legal advice. The details of the client group should be reflected in the lawyer’s retainer terms. The client group should take care to keep all investigation-related communications confidential and not forward emails or documents to those outside the client group to ensure that privilege is maintained.

One of the main drawbacks of a privileged investigation is a lack of transparency, and that has led to a number of investigations being carried out on an “open” (ie, non-privileged) basis even where lawyers are engaged as investigators. Otherwise, other steps such as limited waivers of privilege, for example sharing a summary of the outcome of the investigation and/or sharing documents with a regulator for a limited and specific purpose and on a confidential basis, can help to assuage transparency concerns. Any such limited waivers should be carefully structured to manage the risk of inadvertent waiver of privilege over those documents or indeed other privileged material. 

The position will be more complex for businesses with international operations where the application of privilege may vary depending on the location involved and locus of any likely dispute.

The Rise of “Maxwellisation” in Investigations

Requests for “Maxwellisation” are increasingly filtering from UK public law settings into workplace investigations. Maxwellisation refers to the process of giving individuals who may be subject to criticism in an investigation report advance notice of the relevant findings and an opportunity to respond before the report is finalised.

There are some clear benefits to Maxwellisation. In particular, it allows investigators to check the accuracy of their findings and ensures procedural fairness by reducing the risk of unfair, inaccurate or unbalanced conclusions. This can be particularly important where there are reputational, professional or even legal consequences for those under investigation because it allows for explanation, mitigation or correction before damaging findings are published (and potentially made public). 

However, there are also drawbacks. Maxwellisation can lead to delays in the investigation process, especially where responses are lengthy and require careful assessment. Delays can have a significant impact on those involved who are often anxious about the outcome of the investigation, and can also compromise the integrity of the findings due to memory fade. Maxwellisation can also lead to investigative findings becoming diluted where an investigator’s language or criticisms are watered down in response to feedback received.

In an employment context, Maxwellisation is typically unnecessary and disproportionate in the context of a fact-finding investigation (and is not legally required). In order to make findings of fact, an investigator will generally carry out an evidence-gathering process, involving the review of relevant documents and the conducting of interviews, during which witnesses are given a fair opportunity to respond to questions or allegations against them. Giving witnesses an opportunity to comment on adverse findings once they have given their evidence at interview invites arguments that findings have been suppressed or watered down, and can be seen as unfair if complainants or third parties are not given the same opportunity to comment.

Maxwellisation can also shift the investigation process from a fact-finding one to an adversarial one, which is much more likely to impact on the veracity and integrity of the output where investigators may be inhibited from making unpalatable findings. Sharing draft reports can also increase the likelihood of data breaches or information leaks, which can be hugely problematic where the matters under investigation are particularly serious and/or sensitive. Setting ground rules and short timelines, limiting the response scope to factual accuracy and imposing strict confidentiality obligations can help to mitigate those risks. 

Data Protection Compliance

Investigations are data‑heavy and often involve large volumes of special category (eg, health and ethnicity) data. Investigations must comply with data protection legislation including the UK’s Data Protection Act 2018 and the GDPR. Ensuring that personal data is collected, shared and reviewed (externally or even internally) in a legally compliant way requires a structured, documented approach.

Data protection is increasingly treated as its own workstream in the context of a workplace investigation, in recognition of the highly sensitive nature of the personal data frequently being processed by investigators. This workstream will often involve completing a data privacy impact assessment (DPIA), ensuring employee privacy notices are up to date or specifically prepared, securing data in an appropriate way, and controlling data access on a need‑to‑know basis. Data privacy should be kept under review throughout an investigation process as new issues and data protection challenges can arise.

Employers have seen a sharp rise in the use of data subject access requests by employees as leverage in the context of workplace disputes. Data subject access requests can be made to employers, and also to investigators. Responding to data subject access requests can be a time-consuming task and can distract from an investigator’s work. Where there are delays in responding to requests, or the output is not as anticipated, there is a risk of complaints to the Information Commissioner’s Office. There are limited but important exemptions within the data protection legislation that investigators can rely on in withholding investigation-related data but those must be carefully assessed on a case-by-case basis.

Good project management hygiene in workplace investigations reduces the risk of data privacy-related issues arising. Limiting data collection, documenting decision-making, following secure data-sharing protocols and managing any cross-border data-sharing issues in a proactive way are all key to ensuring data privacy compliance.

AI in Investigations: Risks, Uses and Guardrails

AI is beginning to reshape workplace investigations on both sides of the table. Employees are increasingly using AI tools to draft grievances or whistle-blowing reports, generate data subject access requests and prepare pleadings for employment-related claims. This has led to greater volume, complexity and speed in communications, and uneven quality. The use of AI by employees raises various novel risks in the context of workplace investigations, and investigation procedures should be adapted to mitigate those risks.

First, confidentiality and data protection. Employees uploading internal emails, interview notes, chat logs or personnel data to open-source AI tools is a serious risk and can lead to the loss of the business’ confidential information and data breaches. Acceptable Use policies, whistle-blowing, grievance and disciplinary procedures should make it explicit that company confidential information and personal data must not be uploaded to open-source AI platforms. This message should be reinforced through training, and consequences for misuse followed through.

Second, accuracy. AI‑generated submissions may appear polished but can often be wrong. Examples include non‑existent cases, made-up quotes, and speculative or untrue allegations presented as fact. Investigators should be alert to the potential for “hallucinations” and seek to challenge dubious references and information. Employees should also be required, through relevant policies and procedures, to take ownership (and accountability) for information provided as part of a workplace investigation.

Third, process integrity and volume control. AI enables rapid‑fire correspondence and “weaponised” complaints which require careful and sensitive management by an investigator. It is important for investigators to avoid becoming overwhelmed by information and to maintain proportionality in an investigation. This can be helped by timely acknowledgement of communications, consolidating issues, setting clear expectations around the nature and scope of the investigation and setting reasonable timelines. 

For businesses, AI can be a valuable tool in managing workplace investigations in an efficient and proportionate way. Use cases include summarising evidence, preparing and verifying chronologies, and automated notetaking at witness interviews. Guardrails are essential – human oversight and an understanding of the limitations of AI will be important to mitigate the legal, regulatory and reputational risks of inappropriate AI use and will help to ensure that an investigation holds up to internal and external scrutiny.