When Police or Regulators May Need to Be Involved in a Workplace Investigation

When Internal Investigation Is Not Enough

Most workplace investigations are entirely internal matters. The organisation identifies a concern, appoints an investigator, gathers evidence, reaches findings and takes whatever action the findings support. The process begins and ends within the organisation, and no external body needs to be involved.

But some investigations reveal conduct that goes beyond the reach of internal process. Where the alleged conduct may constitute a criminal offence, where it engages the regulatory obligations of a regulated industry, where it involves the professional misconduct of a regulated practitioner, or where the welfare of a vulnerable individual requires the involvement of a statutory safeguarding authority, the organisation faces a more complex situation. It must manage not only its own internal investigation but its relationship with one or more external bodies, each with their own powers, obligations and timetables that may not align neatly with the organisation’s internal process.

Managing this complexity well requires early recognition that external involvement may be required, careful legal advice on the organisation’s obligations, and disciplined planning of how the internal and external processes will be coordinated. Getting it wrong, whether by failing to refer when a referral was required or by mismanaging the relationship between internal and external processes, can have serious consequences: regulatory sanction, criminal liability, civil proceedings, and significant reputational damage.

This chapter draws on The Workplace and Corporate Investigator’s Handbook to address each of the main scenarios in which external involvement may be required and how to manage them.

This chapter is part of the Workplace and Corporate Investigations Knowledge Guide. If you need an independent investigator see my independent workplace investigator page.

When an Investigation Must Be Paused

The first and most fundamental question where external involvement is contemplated is whether the internal investigation should pause, and if so at what point and for how long.

The general principle is that an internal investigation should not be allowed to interfere with the integrity of external proceedings. Where police have become involved in relation to the same facts, conducting internal interviews with witnesses and subjects who are also witnesses or suspects in the criminal process risks contaminating the evidence available to police, prejudicing the criminal proceedings, and exposing the organisation to criticism for having impeded justice. Similarly, where a regulator is conducting its own investigation into the same matters, the organisation’s internal process must be managed in a way that does not cut across the regulatory investigation.

The decision to pause is not always straightforward. A prolonged pause in the internal investigation may itself cause harm: suspensions continue, affected parties remain in limbo, organisational uncertainty persists, and the passage of time makes evidence harder to gather and witness recollections less reliable. The organisation must balance the risk of interfering with external proceedings against the harm caused by indefinite internal suspension, and must take legal advice on where that balance lies in the specific circumstances.

Where the internal investigation is paused, the organisation should communicate clearly with the parties about the reason for the pause and the expected timescale, to the extent that this is possible without compromising the external process. The pastoral support obligations toward all parties continue throughout the pause.

Potential Criminal Conduct

Where an internal investigation reveals conduct that may constitute a criminal offence, the organisation faces a decision about whether and when to refer the matter to the police. This decision is rarely straightforward, and legal advice is essential before any referral is made.

Some matters clearly require police involvement regardless of the organisation’s preferences: where there is an immediate risk of harm to individuals, where safeguarding obligations require a referral, or where the conduct involves the most serious categories of criminal offence. In other cases the organisation has more discretion, and the decision to refer must weigh a range of considerations including the seriousness of the alleged conduct, the strength of the evidence gathered, the wishes of any victim, the organisation’s own legal obligations, and the likely impact of a referral on the internal process and on the individuals involved.

Where a police referral is made, the internal investigation will normally need to pause. Evidence gathered internally should be preserved and may need to be provided to police. The organisation should seek legal advice on its obligations regarding the preservation and disclosure of evidence, and should be careful not to take steps that could be seen as interfering with the criminal process, including conducting further interviews with individuals who are witnesses or suspects in the criminal investigation.

Where the criminal process concludes without prosecution, or where the prosecution is unsuccessful, the organisation may resume or commence its internal investigation. The outcome of the criminal process is not determinative of the internal disciplinary outcome: the standard of proof in an employment context is the civil balance of probabilities rather than the criminal standard of beyond reasonable doubt. An acquittal does not prevent the organisation from finding that the conduct occurred on the civil standard and taking disciplinary action accordingly, provided the internal process is fair and the findings are properly grounded in the available evidence.

Which Authority to Contact

Where external referral is required or being considered, identifying the right external body is important. The answer depends on the nature of the conduct and the sector in which the organisation operates.

Where the conduct may constitute a criminal offence, the starting point is usually the police, either by reporting to a local police station or, in relation to certain categories of fraud or financial crime, to specialist agencies such as the Serious Fraud Office or Action Fraud. Legal advice on the appropriate referral route for the specific conduct alleged is important before any referral is made.

Where the organisation operates in a regulated sector, the relevant financial regulator, professional regulatory body, or sector-specific authority may need to be notified. In financial services, this may mean the Financial Conduct Authority or the Prudential Regulation Authority. In healthcare, it may mean the Care Quality Commission, the Nursing and Midwifery Council, the General Medical Council or another professional body. In legal services, it may mean the Solicitors Regulation Authority or the Bar Standards Board. Each regulatory body has its own notification requirements and its own investigation powers, and the organisation must understand its specific obligations toward each.

Where the conduct involves potential harm to vulnerable adults or children, a referral to the local authority safeguarding team, and in some cases to the Disclosure and Barring Service, may be required. Safeguarding referrals operate on different timescales and through different processes from employment investigations, and the two must be managed carefully in parallel.

Managing Parallel Processes

The most complex situations arise where the organisation must manage an internal investigation alongside one or more external processes simultaneously. This requires disciplined coordination and clear legal advice on how each process should be managed in relation to the others.

The key principles for managing parallel processes are as follows. The internal process must not interfere with the integrity of the external process. Evidence gathered internally must be preserved and handled in a way that does not prejudice its admissibility in external proceedings. Communications between the organisation and external bodies must be managed carefully, with legal advice on what can be shared and when. The organisation’s duty of fairness to its employees continues throughout, including the obligation to keep parties informed of the process and its progress to the extent that this is possible without compromising the external proceedings.

Where the internal investigation is running in parallel with regulatory proceedings rather than being paused, the scope and approach of the internal investigation must be managed carefully to avoid duplication, inconsistency or interference. In some cases the organisation may be required by a regulator to provide information or documents that would otherwise be confidential to the internal investigation. Legal advice on whether and how to comply with such requirements, and on the implications for the internal process, is essential.

Supporting Affected Parties During Referral

The involvement of external bodies, whether police, regulators or safeguarding authorities, significantly increases the stress experienced by all parties to the investigation. Complainants may face the prospect of giving evidence in criminal or regulatory proceedings as well as in the internal process. Subjects may face criminal investigation or regulatory action alongside the internal disciplinary process. Witnesses may be required to give evidence in multiple forums.

The organisation’s pastoral support obligations toward all parties do not diminish because external bodies have become involved. If anything they increase, because the stakes for everyone involved are higher. The organisation should ensure that all parties are aware of the support available to them, are kept informed of developments in the process to the extent that this is possible, and are not left without guidance about what the external involvement means for their situation and their rights.

Where the subject is suspended during an investigation that has been paused pending police or regulatory proceedings, the suspension may extend for a very long time. The organisation must review the suspension regularly, ensure that the subject understands the basis for it and the process for reviewing it, and consider carefully whether continued suspension remains necessary and proportionate as time passes.

Deciding When and How to Resume the Internal Investigation

Where the internal investigation has been paused pending external proceedings, the decision about when and how to resume it requires careful judgment. The organisation should not resume before the external process has reached a stage where doing so would not interfere with it. But it should also not wait indefinitely where the external process has concluded or reached a point at which resumption is safe.

When resuming, the organisation must consider what has changed since the investigation was paused. Evidence gathered during the external process may now be available that was not available internally. The external findings, while not determinative of the internal outcome, may provide relevant context. Witnesses may have given evidence in external proceedings that can be used to inform the internal investigation, subject to any restrictions on disclosure that apply.

The internal investigation that resumes after a lengthy pause must also address the practical challenges that prolonged delay creates: witness recollections will have faded, personnel may have changed, and the organisational context in which the original events occurred may have shifted significantly. The investigator must be alert to these challenges and manage them carefully in the assessment of the evidence.

Regulatory Notification Obligations in Regulated Sectors

Many regulated organisations have proactive notification obligations that require them to inform their regulator when certain types of concern arise, regardless of whether an internal investigation has been completed or a finding has been made. These obligations vary significantly between sectors and regulatory bodies, and the organisation must understand its specific obligations before any investigation commences.

In financial services, the FCA’s Principle 11 requires regulated firms to deal with their regulators in an open and cooperative way and to disclose anything of which the regulator would reasonably expect notice. This obligation may be triggered by the commencement of an investigation into certain types of conduct, rather than only by its conclusions. Similar proactive notification obligations apply in other regulated sectors.

Failure to notify a regulator when a notification obligation has been triggered is itself a regulatory breach, often more serious in regulatory terms than the underlying conduct that triggered the obligation. Legal advice on notification obligations should be obtained at the earliest stage of any investigation in a regulated sector, before the investigation plan is finalised and before any investigative steps are taken that might themselves need to be disclosed.

Published Resources

My book The Workplace and Corporate Investigator’s Handbook covers this chapter in full, including detailed guidance on managing each category of external referral, the specific regulatory frameworks applicable to the main regulated sectors, how to manage parallel internal and external processes, the pastoral support obligations that apply throughout, and the Meadowbrook Care Home worked example showing how these considerations apply where safeguarding obligations intersect with an internal investigation.

See all books.

Frequently Asked Questions

Must an employer always pause an internal investigation when police become involved?

Not automatically, but usually yes where the same facts are under criminal investigation. The risk of contaminating evidence available to police, prejudicing criminal proceedings or appearing to interfere with the justice process is significant. Legal advice on whether and how to pause, and for how long, is essential before any decision is made. The answer will depend on the specific overlap between the internal and criminal matters, the stage of each process, and the risks to all parties of either pausing or continuing.

Can an employer dismiss an employee who has been acquitted of a criminal charge?

Yes, in appropriate circumstances. The criminal standard of proof, beyond reasonable doubt, is higher than the civil standard applied in employment proceedings, the balance of probabilities. An acquittal means the prosecution did not prove its case to the criminal standard. It does not mean the conduct did not occur, and the employer is entitled to make its own assessment of whether the conduct occurred on the civil standard, provided the internal process is fair, independent and properly conducted. Legal advice before taking this step is strongly recommended.

What are the risks of failing to notify a regulator when required?

Failure to notify a regulator when a notification obligation has been triggered is itself a regulatory breach, often treated more seriously than the underlying conduct that gave rise to the obligation. It may result in regulatory sanction, fines, public censure, and in the most serious cases the withdrawal of regulatory authorisation. It may also aggravate the regulator’s response to the underlying conduct, because it suggests a culture of concealment rather than openness. The notification obligations applicable to your organisation must be identified and understood before any investigation in a regulated sector begins.

How should an organisation support an employee who is subject to both internal and criminal proceedings?

The organisation’s duty of care toward the employee continues throughout both processes. It should ensure the employee is aware of the support available, is kept informed of the internal process and its progress to the extent possible without compromising either process, and is not left without guidance about what the external involvement means for their employment situation. The pastoral support obligations are heightened rather than reduced by the additional stress of criminal proceedings, and the organisation must reflect this in how it manages its contact with the employee throughout.

Can evidence gathered in a criminal or regulatory process be used in the internal investigation?

Potentially yes, but the position depends on the nature of the evidence, how it was gathered, and any restrictions on its use that may apply in the external process. Legal advice on whether and how evidence from external proceedings can be used internally is essential before relying on it. Using evidence obtained through external proceedings without understanding the applicable restrictions can itself create legal risk for the organisation.

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Important disclaimer: This page is provided for general information and educational purposes only and does not constitute legal advice. The content may not be legally accurate for your specific situation. You must not rely on anything on this page in respect of your legal rights or obligations. Always seek independent legal advice before taking or refraining from taking any action. The author accepts no responsibility for any decisions made or outcomes arising from use of this material. If you would like specific advice, contact me here.

When police or regulators may need to be involved