Being able to conduct an effective internal investigation is essential for the day-to-day operation of your organisation. A well-conducted internal investigation helps ensure that those who have engaged in improper conduct are identified as having done so, and are dealt with appropriately. It can also ensure that those who have been wrongly suspected or accused of having engaged in improper conduct have their circumstances claried and the suspicion removed.
An effective internal investigation helps reinforce better workplaces and protects the company from large fines, damages, negative publicity, etc.
Benefits of Internal Investigations include:
- Prevents similar issues from occurring
- Sends a positive message to stakeholders
- Establishes good corporate governance
- Identifies problems in current policies
However, internal investigations must be conducted with special care. This must be done without compromising the relationship with employees or unnecessarily damaging anyone’s reputation. This requires good planning, consistent execution, analytical skill, and an understanding of the legalities involved.
We will provide Internal Investigation Tips by breaking the topic into several parts:
- What are Internal Investigations
- Key Components of an Effective Internal Investigation
- Necessary considerations when conducting Internal Investigations
- 5 Internal Investigation Tips
What are Internal Investigations?
An internal investigation helps determine whether laws, regulations, or internal policies have been violated. The goal of any internal investigation is to obtain a straightforward view of what happened, when it happened, who was responsible, who may have been harmed, and what further actions may be necessary to prevent the alleged wrongdoing from reoccurring.
An internal investigation generally consists of:
- agreeing on the scope of the workplace investigation
- interviewing the complainant in detail initially
- drafting allegations
- informing the respondent about the allegations and subsequent investigation
- interviewing any witnesses for a detailed account
- considering the evidence
- informing the respondent of any evidence you’ve identified, and provide them with the opportunity to respond, and finally officially informing the respondent of any final findings
Internal investigations are an integral part of an effective compliance program as they remove the cause of the reported problem.
Key Components of an Effective Internal Investigation
Here are key components of an effective Investigation process:
The allegation, and purpose and scope of the Investigation must be clearly defined.
An Investigator must be unassociated with parties who are associated with the case in order to maintain neutrality and impartiality. The Investigation must be allowed to proceed without pressure from other interests that would have an interest in affecting the outcome.
The Investigation should approach the matter from a neutral position; the purpose should not be to establish that a violation has occurred or has not occurred. It is particularly important that the investigation not be undertaken from the position of an advocate seeking to defend the company or particular individuals within the company.
Investigations must be completed as quickly as possible for a number of reasons such as:
- A fast Investigation may stop wrongdoing from continuing and mitigate any damages caused
- Over time memories fade and evidence may be difficult to find
- Prompt Investigations tend to be far more efficient.
- All parties with an interest in an Investigation deserve a timely resolution.
An Investigation must exhaust all reasonable sources of information. The extent of a thorough Investigation will depend upon a variety of factors, including the complexity of the matter, as well as whether wrongdoing or other “red flags” have been uncovered during the course of the Investigation.
It is imperative that the independence and objectivity of a particular investigator, as well as the particular findings and conclusions of the Investigation, be independently verifiable to the extent possible from the investigative report itself.
Necessary considerations to make when conducting Internal Investigations
There are important considerations to make when embarking on an Internal Investigation. This includes determining:
- When should a matter be investigated?
- What laws should an employer/investigator be aware of?
- What are my duties as an employer/investigator?
When should a matter be investigated?
In deciding whether an incident, or prolonged conduct, should be ‘investigated’ a manager should assess the following:
- Whether the conduct creates a risk to the health and safety of other employees or other people who work or visit the workplace
- Whether the conduct actually relates to the workplace: i.e. out of hours conduct may not be within the scope of employment
- Whether an allegation is frivolous: An employer is not required to investigate all incidents
- Whether an allegation is calculated to harm another without merit: This may not always be obvious until investigated.
- Whether the conduct is continuing or a single act.
- Whether there may be some requirement to report the conduct to authorities: i.e. criminal offences.
What laws should an employer/investigator be aware of?
In the case of vicarious liability under the Equal Opportunity Act in Victoria, employers may face action where an employee has engaged in conduct that offends anti-discrimination law. This will often throw into question whether the employer had acted reasonable or had taken reasonable steps in preventing the occurrence of the offending conduct.
One way a ‘reasonable prevention’ defence can be established is via proof of adherence to an internal investigation procedure which incorporates appropriate company discrimination, harassment and bullying policies. Conversely, where a company policy does not expressly prohibit offending conduct, a court may be more ready to infer that no reasonable preventative measures had been in place.
Furthermore, an employer must respect employees’ privacy rights when conducting internal investigations in response to a claim or allegation. Although laws such as the Electronic Communications Privacy Act (ECPA) in the United States permit an employer to monitor activities on a computer that is company property, unwarranted or unreasonable invasions of privacy may be prohibited in states such as California.
In the U.K., if an employer uses monitoring software to collect information such as how long they have sat in front of their screen, or spent on the internet, they must comply with the GDPR. The same applies to companies who handle information from people from the EU, even if the company is not located in the EU.
In Australia, organizations are required to follow relevant state laws in respect to employee’s rights to privacy. NSW and ACT have specific surveillance laws that apply specifically to workplace surveillance. Victoria limits the use by employers of surveillance devices in certain parts of the workplace (e.g. washrooms).
To avoid invading an employee’s privacy or violating wiretapping laws, the company should let employees know, in writing, that their calls are going to be monitored. Additionally, if surveillance is going to be conducted, any surveillance must be conducted in a reasonable manner. Surveillance is usually permissible when the employer can prove that there is a business related reason for the investigation.
If an employer is going to search work areas, files, or computers, It is best practice to specify this in the company policy. All employees should understand and be aware of the company policy which allows the employer to conduct reasonable searches of desks, files, computers and other personal work areas when an employee is suspected of theft or other misconduct.
What are my duties as an employer/investigator?
Duty of Confidentiality
Keeping the identity of the source confidential
The identity of the person or people who provide information should be kept confidential. Do not release any information that might reveal, or tend to reveal, the identity of the source. Doing so can have detrimental effects on the source, and may reduce the trust that people have in you and your investigation. Discuss with the source any fears they may have if their identity was revealed.
Even if the source consents to his or her identity being revealed, only disclose their identity when it is necessary to do so. This will help protect the integrity of your investigation, protect the source, and contribute to a general understanding within the workplace that the identity of a source will be kept confidential.
Confidentiality of the subject and those involved
Wherever possible, the subject matter of the investigation and the identity of the subject of the investigation and that of any other people involved should be kept confidential. Your investigation is not complete until a report is prepared. The report is the appropriate place to discuss the details of your investigation and the conduct of particular individuals.
If anyone requests information from you about an investigation, ask yourself the question: “Does the person need to know the information?”. If the answer to this question is “no”, you may wish to deal with questions about the investigation by neither confirming nor denying that an investigation is planned or under way
Confidentiality of information
As an investigator, probably the most important weapon you have in your armoury is confidentiality of the information you have gathered. As your body of investigation information builds, you are able to assess the reliability of fresh information by assessing how it contrasts with information you have already obtained and considering the implications of this. You may speak to a witness whose account contrasts with other highly reliable information.
In these circumstances, you may attach less credit to this new information, unless the divergence can be explained. You may speak to another witness whose account conforms with other information, even information that the witness could not have known or anticipated would be available to you. In such circumstances, you may attach greater credit to such information.
When questioning people, avoid statements that unnecessarily reveal the identity of the source such as “X says that she saw you at…” “X tells me that you spoke to…” “X alleges that you are…”, Rather, ask direct questions, such as: “Where were you…?” “Who did you speak to…?”.
Additionally, a person’s identity might be revealed in more ways than just releasing a name, address or contact number. Be careful not to release any information that might tend to identify the person, such as physical descriptions, locations or personal knowledge that is unique to that person.
Throughout the investigation, here are some things you should avoid in order to protect confidentiality:
- putting information on an unsecured computer
- leaving documents on a photocopier or a printer
- leaving incoming or outgoing faxes on a fax machine
- interviewing people in places where they can be seen or heard
- giving confidential information to others to copy, type, address or send
- not blacking out names, addresses or phone numbers on some documents
- leaving messages on desks or phone services
- sending sensitive material by mail
However, in some cases you may not be able to keep the identity of a person a complete secret. Some information may need to be revealed in order to properly conduct the investigation. In this case, take into account the person’s concerns and make efforts to conceal the information whenever possible.
No matter how impartial they might feel, HR staff have relationships and experiences with others in the office which can play a role in an investigation – even on a subconscious level. And even if an employee doesn’t have a direct role in the allegations, they may feel anxious about being asked to make a statement and feel like they’re taking sides. Make sure an impartial individual leads the investigation to ensure fairness. This may involve hiring a third party to conduct the investigation.
Criminal or Regulatory Considerations
Some investigations may overlap with regulatory or criminal considerations. Organisations should consider whether they are under any obligations to alert police or report the matter to any other regulatory body.
Internal Investigation Tips
1. Conduct interviews in a private place
Conduct the interview in the office of the witness or in a neutral conference room rather than the office of a supervisor or superior. Make sure there are no other distractions or possibility of someone overhearing the conversation.
2. Ask open-ended questions
Asking questions that require a narrative response will encourage the witness to expound and thereby provide additional information.
3. Ask follow up questions
Be sure to ask questions such as who, what, when, where, why, and how.These simple questions frequently unearth additional information.
4. Maintain confidentiality whenever possible
In discussions of the investigation, do not disclose the name of the witness except to those few individuals who have a need to know. Be aware of inflated, vindictive, or false leads.
5. Document and File Preservation
An investigator should preserve any evidence, documents and electronic files (including email, databases, spreadsheets, and graphics) that may contain information relevant to the subject matter being investigated. Special care should be taken to record the source and file from which the documents were obtained and the date they are obtained.
Inaccurate information could change the outcome of the investigation and investigators could face serious consequences. To avoid additional legal costs and inconvenience for the company and parties involved, it is necessary to maintain accurate records and to practice good document preservation practices.
Read Documenting a Workplace Investigation: 3 Things to Know to learn more about documentation practices including:
- Key Documents to Record
- Relevant Laws for Investigation Documentation
- Benefits of proper documentation and record keeping
This will bring understanding and clarity around the idea of documenting workplace investigations.
How Polonious can Help
Polonious Case Management Software provides a consistent process that is procedurally fair for all parties, while recording all actions and decisions to ensure all evidence of the process is documented and auditable alongside any evidence gathered regarding the incident or investigation. Everything recorded in Polonious is then available in detailed reporting for identifying trends and problem areas.
Documents of internal investigations often contain sensitive materials. Investigators and HR teams have a duty to preserve documents and/or electronically stored information (ESI) while also protecting security and anonymity. The Polonious Case Management Software can help you handle sensitive information by ensuring your evidence and case files are secure and anonymous, depending on the level of anonymity requested.
Internal investigations are hard and can be contentious, but they are important to protect your organisation from risk.
It is important to maintain confidentiality in internal investigations, not just for the privacy of involved parties, but because it will help you compare stories without them influencing each other.
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