Some companies appoint an external ombudsman as a way to set up the internal misconduct procedure. By organising themselves this way, they typically aim to combine efficiency and professional case handling. However, while looking good on paper, the model has limited practical effectiveness. Here are some serious caveats to consider:
1: Anonymous reporting is not possible
Employees who witness in-company misconduct and want something to be done about it have no reward for reporting it but their own clear conscience. They have nothing material to gain from speaking up and possibly everything to lose: identifying themselves may lead to retaliation by colleagues or management – or even dismissal. There is only one way to fully secure their position: anonymous reporting. In practice, this is something an ombudsman cannot offer. He or she will meet with the employee in person and if not, will at least require the employee to make himself/herself known. Yes, there may be an initial promise of confidentiality, but things tend to become fluid under pressure. If the company’s stakes are high enough or the legal situation demands it, an earlier promise of confidentiality may not be kept. Employees are clever enough to know this, or at least to suspect it, and may therefore decide to steer clear of any reporting at all, even when cases are at their most severe and their input would be invaluable. Better safe than sorry, after all.
2: Gradually building trust is practically impossible
Even if the ombudsman does offer anonymous reporting and does accept calls from people who do not identify themselves, he/she still has no tool in place to get back to the messenger at a later date. There will be no dialogue possible beyond the initial call and no follow-up communication, meaning that both the ombudsman and the caller are stuck in an all-or-nothing situation from the start. In practice, employees need time and ease of mind to come forward with all they know. They don’t want to be put under pressure. They share what they want, when they want; they want to feel in control. It may take some time to develop the trust needed for full disclosure and to possibly forfeit anonymity. More time, most likely, than the average one-off, quick, result-oriented call can offer.
3: Limited ombudsman availability creates little comfort
The typical ombudsman can be reached during office hours – which is precisely the time of day the employee would like to avoid. He or she would rather check in after hours, or in the weekend, in order to avoid curious colleagues at just a few steps away in the open plan office. These colleagues might well be listening in on his or her call or may become curious about off-site meetings that are not accounted for. Furthermore, the fact that an external ombudsman is located elsewhere may be a cold comfort to the employee, especially if that ombudsman also happens to be with a law firm.
4: An additional barrier: contacting a law firm
“Anything you say can be held against you in a court of law.” The average employee deals with lawyers only a couple of times in their life and mostly by necessity, or at least under circumstances that are less than ideal. With due respect for the legal profession, most people don’t look forward to being in touch with lawyers and may even distrust them. Can I be nailed down for everything I say? Can, indeed, everything I say be used against me? Whose side is the lawyer on, anyway? My side or the company’s? What if there is a conflict of interest? Will my employer channel my message to an external party in their own interest, rather than in mine? Often there are no unambiguous or comforting answers to these questions. So, if the ombudsman happens to be with a law firm, this may be one more reason for the employee not to step forward.
5: Outside position means limited reach, longer lead times
Compared to an internal compliance department, the external ombudsman is separated from the company – physically, but also in terms of company know-how and know-who. Thus, while he or she is no doubt effective in terms of legal and compliance skills, an external ombudsman may not have the detailed company insight and the understanding of its culture, people and processes to act swiftly and effectively on cases. He or she cannot be on top of the situation to the same extent as an internal legal or compliance professional can be. In practice, this means that even if the reporting and case management functions are outsourced, quite a lot of communication between the ombudsman and client company will be necessary. Time-consuming involvement of company legal and compliance staff is a likely result. This extra layer of communication makes it more difficult to minimise the number of people informed about the case on a strict “need to know” basis.
6: Hard to offer world-class handling of messages worldwide
Typically, a multinational company hires an ombudsman from a law firm with whom it has good contacts at partner level in its home country. But most law firms, although part of international chains, have partnerships with a domestic focus. In other words, good contacts and top talent deployment in country A means little assurance that top talent is put on the case in country B, C or D. In these countries the partnership may have other priorities, perhaps making less expertise available. Moreover, most law firms do not have representatives in all countries of the world. Instead, they have a varying number of loose affiliations in the countries where they do not operate themselves. Obviously, this increases the variability in customer dedication and quality of service. Furthermore, reports are going to be submitted in different languages. Each country will have its own language requirements, and the quality and quantity of local language options actually offered per country may add to this variability. This is an important factor, considering that misconduct reporting is mostly done at the local subsidiary level rather than at the company’s HQ. It is therefore imperative that the local message handling be of the highest standards, anywhere in the world. In practice, most ombudsman service providers will find that difficult to deliver.
Effectively connecting employee and ombudsman
All things considered, working with the ombudsman model is not always as easy as is commonly assumed, but it can be done.
The way to go about it is to provide a tie-in with an accessible, anonymous and reliable reporting and communication system. A well-designed SpeakUp line with global reach and a local touch can be used to collect messages, which can subsequently be translated into any language if necessary and then forwarded (either via Compliance or directly) to the ombudsman. After this, the ombudsman can follow up on some, or all, of the messages. By offering the employee an integrity line as a first point of entry, reporting may be encouraged. Furthermore, the communication process between employee and ombudsman can be structured in a way that is accessible, convenient and non-intimidating for the employee. The ombudsman will benefit from the system too, as it makes communication with the employee much easier and provides him or her with better case management options. Good local detection may also make centralised case handling more feasible, reducing the need for an ombudsman service provider to have a local presence everywhere. All in all, with the right system in place, it is possible to reap the advantages of an ombudsman while avoiding the majority of the usual caveats. You may have guessed by now which system we recommend!