Key trends to watch in workplace investigations in 2026

By Sheila Mecking and John Morse

Upcoming Webinar: Evolving Practices in Workplace Investigations: Key Insights for 2026
Join us on February 19, 2026 at 10:00 AM AST for a forward-looking discussion on key investigation lessons from the past year and what to carry into 2026. Register here: https://bit.ly/4jFrfxb

Workplace investigations continue to evolve as courts and tribunals respond to changing work environments, digital communication, and growing expectations of fairness and transparency. Three trends are likely to shape investigation risk and best practices in 2026: the expanding meaning of “workplace,” increasing scrutiny of privilege, and a more refined approach to procedural fairness.

Understanding these trends will help employers design investigations that are both compliant and defensible.

The expanding meaning of “workplace”

The modern legal approach no longer limits the workplace to physical worksites or working hours. Instead, the focus is on impact: whether conduct affects the work environment, employee relationships, or psychological safety.

Off-duty conduct and private digital communications may fall within an employer’s investigative mandate if they surface in the workplace, create a hostile environment, or undermine trust and teamwork. Virtual platforms and social media are now part of the workplace reality.

What to watch for in 2026:

• Increased scrutiny of off-duty and online conduct that affects workplace culture.
• More investigations triggered by conduct discovered informally, not just formal complaints.
• Greater expectations that policies clearly address digital and off-duty behaviour.

Practical takeaway: Review harassment and conduct policies to ensure they capture online and off-duty conduct that impacts the workplace.

Narrower and more disciplined use of privilege

Claims of solicitor-client privilege in workplace investigations are being examined more carefully. Privilege will depend on purpose and structure, not simply on labelling documents or involving counsel.

Where legal counsel acts as both advisor and investigator, concerns may arise about independence and perceived bias. At the same time, investigation reports prepared primarily for fact-finding may not be privileged, even if counsel is involved.

What to watch for in 2026:

• Greater risk of investigation reports being ordered disclosed.
• More challenges to investigations where legal and investigative roles are blurred.
• Heightened focus on retainers and the stated purpose of investigations.

Practical takeaway: Decide early whether an investigation is for legal advice or internal compliance, separate roles where possible, and assume reports may ultimately be disclosed.

A refined approach to procedural fairness

Procedural fairness remains essential in workplace investigations. Fairness requires that parties understand the allegations and have a meaningful opportunity to respond before findings are made. It does not necessarily require an automatic right to comment on final conclusions once the investigation is complete. Independence and neutrality of the investigator remain central.

What to watch for in 2026:

• Closer review of how allegations are framed and disclosed at the outset.
• More challenges based on inadequate notice or limited opportunities to respond.
• Less tolerance for attempts to “fix” fairness concerns after reports are finalized.
• How courts and tribunals treat public vs private organizations’ workplace investigations.

Practical takeaway: Ensure your organization has procedures for workplace investigations that respect fairness and keep a detailed record of why procedural choices were made.

Looking ahead

Together, these trends reflect a broader shift in workplace investigations:

• from location to impact,
• from form to purpose, and
• from technical fairness to practical fairness.

In 2026, employers who invest in clear policies, thoughtful investigation design, and strong procedural foundations will be best positioned to manage risk, maintain credibility, and withstand legal scrutiny.

This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please contact the authors, or a member of our Labour & Employment Group.

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