Investigating can be a tricky thing. Dealing with the rights and safety of those involved in an investigation and balancing competing rights and interests is an intricate process that should be handled proportionally and diligently. This is even more so when investigations are performed as part of your SpeakUp program: confidentiality, safety and trustworthiness are essential pillars of any effective SpeakUp program. One badly managed investigation can have a devastating effect on the reputation and effectiveness of the program.
In this blog Ludo Block, an independent investigations consultant at BLOCKINT, and Evita Slijper-Sips of People Intouch, specialist in building SpeakUp programs, provide you with 10 key tips to keep in mind when organising the investigative follow-up for your SpeakUp programme.
You are about to launch your SpeakUp program and are ready to receive information. Some information may warrant an investigation. What then?
- Be prepared
Make sure that before going live with your SpeakUp program, the organisation is also well prepared for when a message comes in that may warrant an investigation. Preparedness starts with having an investigation protocol in place which, at a minimum, defines a) authority and responsibility for the investigation, b) investigative procedures and methods, c) rights of those involved, d) access to (personal)data, e) record keeping, and f) reporting. Start with drafting a protocol today, as you may need it tomorrow. When you need it, there is no time anymore to draft it and have it agreed with, for example, the works council. Also, mapping your potential available investigators upfront, so you know who to call, is a necessary preparation.
- Critically review the need for an investigation
When actually dealing with a SpeakUp report: think before you leap. An investigation is not the answer to all reports, and maybe not even the best answer at all. Try to view the report from the perspective of the person who made it; what is really bothering her or him and what would be a satisfactory outcome? Is it possible to solve the problem without getting locked into formal procedures? Sometimes a genuine and honest talk by a human resources professional with the individuals involved adds much more value than an investigation. In other words: focus first on building trust with the person reaching out, before immediately jumping into the investigator’s mindset.
- Organise an expedient and effective initial assessment process
Unique about doing investigations as part of your SpeakUp program, is the aim to protect the whistleblower. Therefore, the faster you are able to verify and establish basic facts in relation to the subject of SpeakUp report, the faster a decision can be made whether an investigation is warranted, which adds to the protection of the person who submitted the SpeakUp report. And when an investigation is warranted, the basic facts have already been verified allowing the investigation to start swiftly without unnecessary discussion.
- Clearly formulate the aim of an investigation
When the preliminary assessment of a submitted SpeakUp report results in a decision to investigate the matter, it is important to document this decision, including the reasons as well as the central question and aim of the investigation. Only a properly formulated question and assignment provides a sufficient framework for the investigator to work on, and this should include the purpose of the eventual report. Is the report for internal use only, or could it be used for legal action? Will, or can it be referred to the authorities?
- The ultimate “whistleblowing” protection: removing references to a whistle blowing report is possible
If a preliminary review of a received report leads to concrete evidence supporting the SpeakUp report, consider using that evidence itself as the starting point of the investigation. Removing the involvement of the whistleblower results in the ultimate protection for him/her. Obviously, this choice needs to be discussed with the person who submitted the SpeakUp report.
- Consider who investigates
Investigation requires a mix of certain skills that not everyone is equipped with. Furthermore, not all cases require the same skill set or approach: a #metoo case cannot be compared with a fraud case. While the inhouse counsel, internal auditor and human resource manager are the usual suspects to perform investigations, their training or position do not guarantee that they indeed have the required skills. NB. It is not recommended to involve the organisation’s compliance officer(s) in internal investigations if you want them to remain effective in promoting compliance.
- Duty of care towards those involved
In the majority of investigations based on a SpeakUp report, there are also (a) person(s) involved who are somehow accused of wrongdoing. The current focus in society on facilitating whistleblowers may result in a situation where the accused are quickly presumed to be guilty. People quickly think that if a whistleblower needs that much protection, he or she must be right. However, the organisation not only has a duty of care towards the whistleblower, but certainly also towards the person(s) accused of any wrongdoing.
SpeakUp reports, even when made in good faith, may not always be true and accurate. The facts reported may have been observed incorrectly or incompletely and – occurring even more often – the submitter of the report may have incorrectly interpreted those facts as wrongdoing.
The presumption of innocence is an important principle in criminal justice and should be as important in any investigation in which natural persons are suspected of wrongdoing. After the facts are determined, the accused should therefore receive an opportunity to not only give a statement (responding to the accusations) but also the right to comment on the draft findings. Experience from investigations shows that only when putting findings in their proper context, does the complete story reveal all its nuances.
- To outsource or not to outsource?
Two key elements play a role in the decision whether to outsource the investigation of a report. The first element is the potential conflict of interest. If wrongdoing by members of the senior management is alleged in a report, the organisation should consider whether an internal investigation under authority of that same management would not constitute a (perceived) conflict of interest. An outsourced investigation ordered by the supervisory board would avoid such a (perceived) conflict.
The second element in the decision whether or not to outsource an investigation, is the availability of investigative capacity, both in terms of quantity and quality. Not every organisation is able to maintain inhouse investigative resources, sometimes it is far more efficient to have investigative capacity on a retainer.
But even if the organisation can maintain in-house investigative capacity, the question is whether they are capable of investigating a wide range of different allegations. Dealing with workplace harassment is quite different from untangling a corruption scheme and both situations require specialised skills and experience.
- Restrict the circulation of the final report
Investigation reports, by their nature, contain significant detail on the persons involved as well as proprietary information belonging to the organisation. It makes sense to communicate upfront to those involved, including the person who submitted a SpeakUp report, whether or not they will receive the full report of the investigation. A summary detailing what was investigated, what the key findings were, and what actions the organisation has taken to correct and/or improve the situation can be a proper and sufficient form of feedback to the submitter of the SpeakUp report. Having a clear feedback guideline in place can help to avoid misunderstandings and manage expectations.
- Consider your terminology wisely
The purpose of a SpeakUp program is creating early transparency by means of speaking up, so that ethical wrongdoing can be prevented or detected as early as possible. With this in mind, offering an environment which your employees trust and which invites them to speak up is extremely important. For this reason we advise that your communication on the SpeakUp program avoids legal terminology, complicated formal process steps, exceptions, complicated scope restrictions, rights and duties, and scary labels like “whistleblower”. In this context, consider whether the term “investigation” or “investigator” is appropriate in your communications, program, procedures and during follow-up. Perhaps a term like ‘examination’, ‘fact-finding’ or ‘inquiry’, instead of ‘investigation’, is a better match with your organisational (or national) culture.
We hope that the tips above provide you with a first start on how to set up the investigative follow-up for your SpeakUp programme. We understand that every organisation is different and that different jurisdictions may require different approaches and different laws to comply with. Feel free to contact the authors with any further questions. Please contact Evita (firstname.lastname@example.org) for all your questions in relation to introducing and organising your SpeakUp programme and contact Ludo (BLOCKINT.nl) for questions on everything related to investigations (protocols, training, support and actual investigations).