8 top tips for conducting a workplace investigation with a specific focus on whistleblowing investigations. Guest article by Hannah Netherton & Steven Cochrane (CMS).
1 Introduce an investigation framework
Firstly, it is critical for all involved to be clear and aligned on the key objectives of the investigation. The ‘end goals’ will very much frame the scope of the investigation, the method of investigating including who should investigate, whether legal privilege should apply and the importance of confidentiality and the form of reporting.
Establishing an effective investigation process will also promote confidence amongst staff and other stakeholders, including investors, that any wrongdoing will be taken seriously, and that individuals are held accountable for their actions. The internal investigation process may also root out more systematic issues such as poor risk culture or certain behavioural problems, which might not be obvious to those at a senior level.
In certain sectors, such as financial services, whistleblowing and the need to have a ‘speak up, listen up’ culture has become a regulatory expectation. Regulators such as the Financial Conduct Authority have made it clear that ‘psychological safety’, an open environment where people are empowered share ideas, admit their own failings and identify problems without the fear of reprisal, is a regulatory requirement, rather than a ‘nice to have.’
Most financial institutions already have relatively sophisticated whistleblowing frameworks, including policies, escalation procedures and multiple internal and external channels for the reporting of wrongdoing. But the recognition of this need and this framework for a healthy workplace culture and sound risk management is not unique to the financial services industry. It is important for all organisations to foster a psychologically safe environment where employees can be open, without fear of retaliation. Research shows that such environments promote employee engagement and innovation. Where employees do not feel that they can easily raise issues informally, it is crucial that organisations have robust and well communicated channels in place for staff to raise concerns more formally and confidentially. Where this is the case employees are more likely to feel that issues can be resolved internally, thereby reducing the risk of external disclosures.
5 Select the appropriate investigator
This is essential to a smooth-running investigation. An investigator without the requisite investigative skills, technical/subject matter knowledge, and independence can undermine the whole process. The identity of the investigator will be influenced by the nature of the complaint. There may be occasions where an external investigator needs to be appointed to maintain the integrity of the investigation.
8 What is the output?
The investigator should consider at the start of the process what the output of the investigation will be, including whether there will be a written report, or only verbal, and who receives that report. The investigator will need to consider whether the whistleblower will get access to any report. Considerations of proportionality, fairness (to those who raised complaints as well as any alleged wrongdoers) and confidentiality and maintenance of legal privilege (if claimed), will all be relevant to this decision.
If employers take our suggested approach with their whistleblowing investigations, it will encourage workers to come forward internally as well as help minimise risks to the organisation. There is a huge ongoing media appetite for workers to report on unscrupulous bosses during this pandemic. The reputational (as well as legal) consequences of getting this wrong can be costly and significant.
For more information on this subject matter please see our strategic guide here.