Guide to Workplace Investigations in Jersey (International Employment Lawyer)

Starting an investigation 

1. What legislation, guidance and/or policies govern a workplace investigation?

Although Guernsey and Jersey each have their own employment regimes, the Courts and Tribunals in both jurisdictions often have regard to foreign judicial precedent and guidance, both from each other and other jurisdictions, for example, the UK ACAS Codes of Practice and Guidance on workplace matters and ICO Guidance on data protection matters. 

Guernsey, Jersey, and the UK all apply the Burchell Test as the standard for assessing the fairness of conduct-based dismissals arising from workplace investigations. This underpins the shared approach to employment law across these jurisdictions and explains that whilst UK and foreign judicial precedent generally is not binding, they have long since been regarded as being of strong persuasive value by Guernsey and Jersey Courts and Tribunals. 

Jersey

The primary legislation relevant to workplace investigations includes: 

• Employment (Jersey) Law, 2003; and
• Discrimination (Jersey) Law, 2013.

Other legislation includes: 

• Human Rights (Jersey) Law 2000;
• Health and Safety at Work (Jersey) Law, 1989;
• Data Protection (Jersey) Law, 2018 (DP Law 2018); and
• Data Protection Authority (Jersey) Law 2018 (DPA 2018).

In terms of guidance, the Code of Practice on Disciplinary and Grievance Procedures (the Code) issued by the Jersey Advisory Service (JACS), provides detailed guidance on how investigations should be conducted (aligned closely to ACAS's Code of Practice on Disciplinary and Grievance Procedures). The Government of Jersey has also published a guide on conducting workplace investigations for public servants. 

Most employers are expected to, and in some specific sectors (for example regulated entities in the finance sector), are required to have internal policies outlining investigation procedures where conduct or issues affect fitness or propriety, regulatory compliance or workplace culture.

2. How is a workplace investigation usually commenced?

Investigations typically begin following a complaint, grievance, performance concern, whistleblowing, disciplinary concern, incident or accident reporting. 

Employers must assess whether an investigation is necessary and proportionate. Terms of reference should be drafted to define scope, witnesses and documentary evidence required identified, and an impartial investigator appointed. Guidance from the Code recommends informal resolution where appropriate, but formal investigations must follow fair procedure. 

3. Can an employee be suspended during a workplace investigation? Are there any conditions on suspension (eg, pay, duration)?

Yes, in principle an employee may be suspended pending an investigation. However, suspension is not viewed as a neutral act and should not be adopted as a default position in all workplace investigations. Employers will need to consider whether suspension is appropriate (and this may involve somewhat of a quasi-investigation before commencing the actual investigation) including considering whether or not:

• the employee's presence could interfere with the investigation;
• there is a risk to the health and safety of the employee or other employees of the business; or
• there is a risk of further misconduct.

Employers should have regard to contracts of employment to confirm the right to suspend and the conditions of any such suspension. It will usually be the case that suspension is on a fully paid basis, unless the contract provides otherwise. 

In some contexts, regulators or criminal authorities may also need to be notified and potentially even involved in decisions regarding the suspension of an employment, as they may have a view on the matter. 

In a nutshell, suspension should be justified by the circumstances, proportionate and time limited, and reviewed regularly to ensure it remains necessary. Suspension will typically be on a fully paid basis unless otherwise stated in the employment contract. 

4. Who should conduct a workplace investigation, are there minimum qualifications or criteria that need to be met?

There are no qualifications required of someone to conduct a workplace investigation in Guernsey or Jersey. However, best practice and guidance from the Code recommends that the investigator should be:

• impartial and not involved in the incident under investigation;
• competent, ideally with training or experience in handling investigations;
• separate from the person who will make any disciplinary decisions, to ensure procedural fairness; and
• able to document findings clearly, assess evidence objectively, and maintain confidentiality.

An investigator can be internal or external to an organisation. If an internal investigator is appointed, this will typically be either an HR official, line manager, senior manager or director. External investigators, for example, HR consultants or lawyers, will usually be engaged in instances where allegations are serious, complex or sensitive or if internal conflict of interest arises. Even in instances where an external investigator is appointed, the employer ultimately remains responsible for the investigation process and outcome. 

In all instances, employers should ensure compliance with any internal policies or guidelines regarding the appointment of an investigator in workplace investigations. 

5. Can the employee under investigation bring legal action to stop the investigation?

It is rare but not impossible for an employee to bring legal action to stop a workplace investigation. Legal action may be considered if:

• the investigation is conducted in breach of the employee’s contract;
• if the investigation is not adjourned pending the outcome of criminal proceedings and failure to do so amounts to breach of the implied duty of trust and confidence; or
• there is a violation of statutory rights, such as discrimination or breach of data protection laws.

However, Guernsey and Jersey courts are generally reluctant to intervene in internal employment processes unless there is clear evidence of unfairness or illegality. Most challenges would arise after the investigation, typically in the form of an unfair dismissal claim or constructive dismissal.

Evidence gathering 

6. Can co-workers be compelled to act as witnesses? What legal protections do employees have when acting as witnesses in an investigation?

Co-workers cannot be compelled to act as witnesses in a workplace investigation. Participation is generally voluntary.

However, in some cases, providing information may be considered a reasonable management instruction, especially for senior staff or those with a duty to report misconduct and failure to comply with the instruction may present grounds for disciplinary action. 

Employers should avoid coercion and instead encourage cooperation through clear communication and assurances of confidentiality. If an employee has concerns about participating as a witness, these should be discussed and workarounds considered, for example, having the employee address any questions by way of written representation. 

Employees who participate in a witness capacity in workplace investigations are entitled to:

• protection against victimisation and retaliation, especially in cases involving discrimination or whistleblowing;
• compliance with their rights under the DP 2017/DP 2018 ensuring that personal data shared during the investigation process is handled lawfully and securely;
• any additional safeguards stemming from contractual provisions or internal policies and procedures (eg, where appropriate allowing participation in an investigation on any anonymous basis or offering employee support services); and
• expect that matters will be handled confidentially.

7. What data protection or other regulations apply when gathering physical evidence?

Workplace investigations (including the gathering of evidence) must comply with the DP 2018 and DPA 2018, which are broadly equivalent to the EU’s GDPR. 

The key principles that employers are expected to comply with when gathering evidence include: 

• lawful, fair, and transparent processing of personal data;
• data must be adequate, relevant, and limited to what is necessary;
• a DPIA may be required if the evidence gathering involves high-risk processing (eg, surveillance or accessing sensitive personal data);
• CCTV use must comply with specific guidance issued by Jersey Office of the Information Commissioner (JOIC), including signage, purpose limitation, and secure storage;
• ensuring confidentiality and security of all collected data and be prepared to respond to data subject access requests; and
• ensuring a restriction on further processing of personal data without a valid purpose. 

In addition, if the gathering of evidence involves personal possessions of employees, employers should comply with internal policies on such matters. 

Regard should always be had to the right of data subjects to make data subject access requests for copies of their personal data, and so any documentation created during an investigative process should be subject to the employer's data privacy notice. Where an external investigator is involved, they are likely to be seen as an agent of the employer but may also be regarded as a data controller in their own right.

Investigatory powers is governed by the Regulation of Investigator Powers (Jersey) Law 2005 and supplemented by supplemented by Part 11 of the Police Procedures and Criminal Evidence (Jersey) Law 2003. Together, these provide the framework for law enforcement to intercept communications, surveillance and use other covert human intelligence sources when gathering evidence. 

8. Can the employer search employees’ possessions or files as part of an investigation?

In Guernsey and Jersey, employers may search an employee's possessions or files as part of an investigation, but this is usually in exceptional circumstances and subject to specific conditions: 

• the search must be lawful, proportionate, and justified;
• while employers may have a contractual right to search an employee's possessions or files as part of an investigation, it is advisable to obtain the employee's explicit consent to the search. If an employee refuses consent to the search, employers should consider whether the employee has a valid reason for refusing consent and determine next steps appropriately;
• searches must also comply with the DP 2017/DP 2018, which broadly requires:
• a lawful basis for conducting the search and accessing personal data;
• transparency about the purpose of the search;
• minimisation of intrusion into personal privacy;
• it is also advisable to notify an employee of the search of their personal possession or digital files and ideally, allow the employee or an impartial third-party to be present during the search;
• if the search involves digital files or devices, employers must:
• distinguish between company-owned and personal property;
• avoid accessing private communications or personal content unless strictly necessary and legally justified; and
• consider conducting a DPIA, if sensitive data is involved.

9. What additional considerations apply when the investigation involves whistleblowing?

Jersey is in the process of introducing statutory whistleblowing protections following recommendations from the Employment Forum in Jersey. This will apply amongst other circumstances, in the context of workplace investigations and additional considerations include: 

• ensuring that the employee's identity is protected unless disclosure is legally required;
• investigations being impartial and free from bias or retaliation;
• protecting employees who raise concerns in good faith from detrimental treatment, including dismissal, disciplinary action, or harassment;
• whistleblowers should receive feedback on actions taken and have access to wellbeing support;
• prepare for the upcoming legislation;
• ensure whistleblowing policies are accessible and well-communicated; and
• avoid contractual clauses that suppress protected disclosures.

Confidentiality and privilege 

10. What confidentiality obligations apply during an investigation?

In Jersey, confidentiality is governed by a combination of contractual obligations, employment law, data protection legislation, and government policy:

• the Government of Jersey’s Investigations Framework and Whistleblowing Policy emphasises that investigations should be conducted discreetly and confidentially; and
• all participants must be informed that confidentiality is essential, and breaches may result in disciplinary action;

However, absolute confidentiality cannot be guaranteed, especially where:

• the respondent has a right to know who made the complaint;
• witnesses must be cross-examined or their evidence challenged;
• disclosure is required for legal or regulatory reasons; and
• employees may discuss the matter with their trade union, legal adviser, or support person, but should avoid sharing details with others.

Employers must also comply with the DP 2018 and DPA 2018, ensuring that personal data is handled securely and only disclosed when legally justified.

11. What information must the employee under investigation be given about the allegations against them?

While there is no statutory checklist, fair procedures and natural justice principles require that the employee under investigation be given:

• a clear explanation of the allegations, including relevant dates, events, and individuals involved, allowing them sufficient information to be able to fully respond to the allegations; and
• copies of relevant documentary evidence, applicable policies and procedures.

Failure to provide this information may result in a breach of the implied duty of trust and confidence and could undermine the fairness of any disciplinary action taken.

12. Can the identity of the complainant, witnesses or sources of information for the investigation be kept confidential?

The identity of complainants, witnesses, or sources of information may be kept confidential, but only in exceptional circumstances. Key considerations include:

• fairness vs. confidentiality – the employee under investigation has a right to know the case against them, which may include knowing who made the complaint or provided evidence. Keeping this information confidential may frustrate the employee's ability to answer the allegations and should be limited to exceptional circumstances only;
• risk of retaliation – if there is a genuine risk of harm or victimisation, anonymity may be justified; and
• data protection – under the DP Law 2017/ DP Law 2018, personal data must be processed lawfully and fairly. This includes balancing the rights of the complainant and the respondent.

Employers should avoid guaranteeing anonymity unless absolutely necessary and should explain the limits of confidentiality to all parties involved. It may be appropriate to consider redacting names in early stages on the understanding that this may ultimately be disclosable to ensure fairness in the investigation process. Any decisions regarding anonymity of witnesses, sources or information in the workplace investigations should be properly documented. 

13. Can non-disclosure agreements (NDAs) be used to keep the fact and substance of an investigation confidential?

NDAs can be used in settlement agreements to maintain confidentiality around investigations.

However, there is growing scrutiny of NDAs, particularly in cases involving harassment, discrimination or whistleblowing.

NDAs are unlikely to be effective to prevent reporting to police or regulators. Employers should ensure that NDAs:

• are voluntary, not coercive;
• do not include clawback clauses or penalties that deter lawful disclosures; and
• are reviewed by legal counsel before being signed.

14. When does privilege attach to investigation materials?

Legal privilege may attach to investigation materials under two main categories:

Legal Advice Privilege (LAP):

• applies to confidential communications between a lawyer and their client;
• the dominant purpose must be to seek or provide legal advice;
• only employees who are authorised to seek legal advice on behalf of the employer are considered 'the client';

Litigation Privilege (LP):

• applies to communications made for the dominant purpose of preparing for litigation;
• litigation must be reasonably contemplated, not merely possible; and
• can extend to communications with third parties (eg, external investigators or experts).

Rights to representation

15. Does the employee under investigation have a right to be accompanied or have legal representation during the investigation?

There is no statutory right for an employee to be accompanied or legally represented during an investigation meeting.

However, best practice and principles of natural justice derived from the Code suggest that:

• employees should be allowed to be accompanied by a colleague or trade union representative, especially in serious or sensitive cases;
• legal representation may be permitted in very exceptional circumstances (which is rare);
• employers should check their internal policies or employment contracts, which may grant broader rights to a companion or representation; and
• if the employee has a disability, allowing a support person may be required as compliance with the legal obligation to make reasonable adjustments.

16. If there is a works council or trade union, does it have any right to be informed or involved in the investigation?

The involvement of a trade union or works council depends on:

• the existence of a recognition agreement; and
• the terms of the employee’s contract or collective bargaining arrangements.

There is no automatic right for a union to be informed or involved in an investigation unless:

• the employee requests representation; or
• the union has a contractual or negotiated role in disciplinary matters.

Under data protection law, employers must also consider whether informing a union could involve sharing personal data, and whether the employee has consented to that disclosure.

In practice, many employers allow union representatives to be involved if the employee requests it, especially in public sector or regulated environments.

17. What other support can employees involved in the investigation be given?

There is no statutory list of support measures to be offered to employees involved in a workplace investigation. Some recommended support measures include: 

• access to a nominated contract for queries and information on the investigation process;
• access to employee assistance programme;
• regular updates on the progress of the investigation, expected timeline and next steps; and
• where appropriate and reasonably practicable, adjustments to working arrangements. 

Employers may well have a host of support measures in employment contracts and internal policies and in those instances, must ensure compliance with these support measures. 

Issues during the investigations

18. What if unrelated matters are revealed as a result of the investigation?

If unrelated matters are uncovered during a workplace investigation it is recommended that the investigator: 

• document them separately;
• avoid including them in the current investigation report unless they are directly relevant to the scope or terms of reference; and
• report them to the employer or appropriate internal authority for consideration.

The employer may decide to:

• initiate a separate investigation into the unrelated issues; or
• address them informally, depending on their nature and seriousness.

From a data protection perspective, any personal data collected that is not relevant to the investigation should be:

• disregarded; and
• deleted or securely stored, unless there is a lawful reason to retain it.

This approach helps maintain the integrity and focus of the original investigation while ensuring that other concerns are not ignored.

19. What if the employee under investigation raises a grievance during the investigation?

If the grievance is related to the subject of the investigation, an employer may choose to incorporate and address the grievance within the same investigation process, ensuring that the employee’s concerns are fully considered.

If the grievance is unrelated, the employer has the option of either:

• pausing the investigation and dealing with the grievance first; or
• running both processes concurrently and using separate investigators if necessary.

Employers must ensure that both the investigation and grievance are handled fairly and impartially, with clear documentation.

The employer should avoid delaying the investigation unnecessarily but must also ensure the grievance is not dismissed without proper review. Employers should assess whether the grievance is an attempt to delay or derail the investigation. 

20. What if the employee under investigation goes off sick during the investigation?

If an employee goes off sick during an investigation, the employer should:

• pause the investigation temporarily to assess the nature and severity of the illness;
• consider whether the employee is fit to participate in the process, possibly with adjustments. This may involve requesting a medical certificate or report, or a referring the employee to occupational health for an assessment;
• consider offering alternatives for the employee to participate in the investigation process, such as the opportunity to submit written responses instead of attend meetings or have remote interviews at a neutral location;
• if the absence is prolonged, the employer must balance:
  • the need to conclude the investigation;
  • the employee’s right to fair participation;
• if the investigation proceeds without the employee, the employer should document all efforts to involve the employee; and
• employers should always ensure that decisions are based on available evidence, not assumptions and that decisions are well documented. 

21. How do you handle a parallel criminal and/or regulatory investigation?

Handling parallel investigations requires careful balancing of legal obligations and procedural fairness.

Workplace investigations may proceed even if a criminal or regulatory investigation is underway, but employers should assess:

• the risk of prejudicing the external investigation;
• whether the employee may be advised not to participate in the internal process; and
• the length of delay involved in waiting for external proceedings to conclude.

There is no legal requirement to stay the internal investigation, but doing so may be appropriate if:

• the criminal matter is serious;
• the employee’s participation could risk self-incrimination; or
• the employer lacks sufficient evidence to proceed fairly.

If the police are investigating a criminal matter, they can compel disclosure of evidence through a warrant, subpoena or court order, and employees will have to comply with such requests or risk being charged with interfering with an investigation. 

The Jersey Financial Services Commission or JOIC may require employers to share investigation findings, provide access to relevant documents or cooperate with audits or inquiries regarding the investigation. 

Employers must ensure that any disclosure complies with data protection law and does not breach employee confidentiality unless legally required.

Outcome of investigation

22. What must the employee under investigation be told about the outcome of an investigation?

There are no statutory obligations on employers dictating what an employee must be told about the outcome of an investigation.

However, the Code suggests that once the investigation completes, the employee should be informed about the outcome of the investigation in writing, and what steps the employer intends to take next in relation to the outcome of the investigation – whether it results in no action, informal resolution or formal disciplinary action.

23. Should the investigation report be shared in full, or just the findings?

There is no statutory obligation to share the full investigation report with an employee. Relevant considerations in disclosing an investigation report include the status of the reports in terms of legal advice or litigation privilege and whether disclosing the report would inadvertently waive privilege, and whether criminal proceedings are ongoing or anticipated and disclosing the reports poses a concern of contaminating evidence. 

24. What next steps are available to the employer?

The investigation report should set out the investigator's recommendations. These recommendations are generally divided into three broad categories: that there is no case to answer; that there is a limited case to answer; or that there is a case to answer. It will then be for the employer to decide whether to accept that recommendation and action next steps accordingly. 

For example, if the investigator recommends resolution through information measures, such as by facilitating training or development steps, the employer should consider arranging this. If the recommendation is that no action required, then unless the employer has additional evidence or good reason to disregard the investigator's finding, the matter should be closed and a record of the investigation retained. If the recommendation is that there is a case to answer and that it should be escalated to formal disciplinary action, the employer should consider this and, if in agreement, initiate its formal disciplinary process, ensuring compliance with any internal policies and procedures. If an employer disagrees with an investigator's recommendations, it is advisable to document the reasons for the decision. 

Employers may also choose to use the outcome of the investigation to assess and improve on gaps in internal policies and procedures or practices. 

25. Who can (or must) the investigation findings be disclosed to? Does that include regulators/police? Can the interview records be kept private, or are they at risk of disclosure?

Investigation findings should be disclosed to the employee whose conduct is under investigation or who is the subject of any grievance.

Investigation findings can be shared with relevant internal stakeholders albeit on a strictly need-to-know basis. 

External disclosure may be required in the following circumstances: 

• law enforcement – if the investigation uncovers criminal conduct, employers may voluntarily choose to disclose these findings to law enforcement, however, unless charges have been brought against the employee, the police cannot compel disclosure; and
• regulators – regulated entities may be under a legal obligation to report misconduct which goes to the fitness or propriety of prescribed persons - this does not, however, require the disclosure of the report or the investigation details and care should be taken in respect of what is disclosed and for what purpose.

Interview records will constitute personal data for the purposes of the DP Law 2017/DP Law 2018. Therefore, they should be stored securely and only accessed by authorised personnel. Disclosure of interview records may be permitted if; required by law, necessary for legal proceedings or consent is obtained for disclosure. Employees may also be able to access interview records through data subject access requests, albeit on a limited basis with any third-party data or non-relevant being redacted.

26. How long should the outcome of the investigation remain on the employee’s record?

It is not so much the outcome of the investigation but rather the steps taken following the outcome of the investigation (whether that be informal resolution or formal disciplinary action) that are important for an employee's record. 

If the employee is issued with a formal disciplinary sanction for example either a verbal or written warning, there is no statutory limitation on the period that it must remain on the employee's file. Often internal policies specify the validity period of formal disciplinary sanctions. For as long as the disciplinary sanction is valid it remains on an employee's file and is relevant for disciplinary purposes. Once the disciplinary sanction expired, it may be retained on an employee's file but should not be considered for disciplinary purposes. 

The outcome of the investigation report will of course contain personal data for the purposes of data protection laws and should therefore be retained in accordance with an employer's retention policy. 

27. What legal exposure could the employer face for errors during the investigation?

Employers can face significant legal exposure if errors occur during a workplace investigation which include: 

• claims of unfair dismissal if the investigation is found to be unfair. Common errors including failing to allow the employee an opportunity to respond to allegations, failure to appoint an impartial investigator and failure to follow internal disciplinary procedures;
• claims of harassment or discrimination, which included biased questioning or assumptions, ignoring complaints from certain groups of people or failing to accommodate employees with disabilities during the investigation process;
• data protection breaches if personal data arising from the investigation is not handled in accordance with data protection laws; and
• breach of contract claims if the investigation is carried out in breach of contractual terms or policies. Some examples include conducting covert investigations without justification, failing to follow internal procedures resulting potentially resulting in a breach of the duty of trust and confidence in the employment relationship.