Undertaking Effective Workplace Investigations Into Whistleblower Reports: An Increasingly High Priority

A striking feature of our client engagement during 2019 has been the increase in client enquiries about how best to investigate the contents of their hotline reports.

 

What’s driving the heightened focus on internal misconduct investigations?

 

This heightened focus on best practices in the undertaking of workplace investigations is in fact a worldwide development, and it’s not surprising. Here’s why:

 

It’s a natural consequence of the call to speak up

 

We’ve all been calling on our employees to ‘speak up’, and now that they are, we have to ‘listen up’. Not looking into concerns raised by those who care about the best interests of your business? You run the risk of being seen as sweeping bad news under the carpet. What’s more, word quickly spreads that you aren’t really that interested in the information your employees have to share with you, in turn deterring future reports.

 

You are accountable for the actions you take – or fail to take

 

When you decide that an allegation has no merit and does not warrant further investigation you may be right – or wrong. Our clients tell us repeatedly about their misgivings at having dismissed earlier allegations as unfounded without full investigation, only to discover way down the line that they were true. In the interim even greater loss has been incurred or worse damage done.

 

Executive reputations are at risk

 

Not only were more CEOs dismissed around the world last year for failings related to ethics than for financial performance, but boards are increasingly reserving their greatest displeasure for executives who erroneously disregard red flags.

 

Overlooked reports are being welcomed by third parties

 

From social media to investigative journalists and regulatory bodies, there is an ever-increasing number of third parties interested in ‘insider information’. Employees frustrated at a lack of response by their managers are more likely to take that information outside the business, either in confidence or via anonymous leaks. When this happens, your ability to control the investigation process is lost.

 

The law obliges you to apply your mind to whether to investigate a disclosure

 

In South Africa, as is the case in many countries, the Protected Disclosures Act (as amended) requires you to advise an employee or worker who has made a disclosure whether or not an investigation into their report will be undertaken – and if not, why not. It also requires that you advise them in writing, at various intervals, on the progress of an investigation and of what decision is finally made as a result of it.

 

 

The challenge of conducting effective internal investigations

 

Given the compelling argument for the undertaking of effective investigations into your whistleblowing reports, why is doing so more the exception than the rule? Here are the two key insights that we have from our clients:

 

Investigations into allegations are seldom easy investigations

 

We know that some of you report a sinking feeling when a whistleblowing report appears in your inbox. It’s understandable to hope that the allegations contained in the report you are about to open are without substance. Why? Investigating allegations is never an easy process – it’s actually easier to investigate a loss you have already incurred. Deciding how best to proceed without causing needless collateral damage can be daunting.

 

Resource constraints are a significant limitation

 

If your business is like most, your internal capacity is already fully deployed in the service of your core business. Despite this, an effective workplace investigation typically requires considerable resources, starting with the time you will need to find at short notice to craft a course of enquiry.

 

By definition, an investigation is required because we are not in possession of all the facts and evidence.  Given the need to proceed with sensitivity, and in a manner that will protect confidentiality, the early decisions taken are both critical and complex. As new information is obtained, your investigation strategy needs to be updated and revised, typically requiring strong co-ordination and the short notice availability of a core team.

 

It’s also possible that you do not retain the range of skills and knowledge required for a given investigation on an in-house basis, and this can lead to the deployment of the seemingly most appropriate internal resources on an ad-hoc basis. This in turn can hamper the effectiveness of an investigation despite the best endeavours of your team. Our clients often find that:

 

  • The specialised interviewing skills involved in detective work differ from the interview situations in which their internal resources will usually find themselves.
  • Even the seemingly simple task of taking formal statements that can stand up as evidence is an arduous process for those who do so only occasionally.
  • Formulating sound avenues of investigation can require not only a knowledge of the business, but an in-depth understanding of criminal behaviour and even of crime syndicate strategies being used in their location or sector.

 

While the direct costs of an investigation can be high, the indirect costs to the organisation can be enormous. To limit these costs and to increase the prospects that an investigation delivers the desired insights and evidence, employers are increasingly turning to professional investigators who specialise in supporting you and your internal team in the process of investigating a whistleblowing allegation.

 

Some implications for your ethics hotline service 

 

At Whistle Blowers we support our clients through their investigations in the following ways:

 

  1. We maintain contact with your whistleblower in order that we can refer any questions that arise during your investigation to them on your behalf
  2. We will facilitate a meeting between them and a member of your investigation team should you wish, and they agree
  3. We provide feedback to them regarding an investigation and its outcome that you may wish to convey to them in keeping with the letter and spirit of the Protected Disclosures Act.

 

We will never share information from a whistleblowing report with an unauthorised or third-party, and this means you will need to provide the information contained in a report to the members of your investigation team, be they internal or outsourced and more likely a combination of the two.

 

As the effectiveness of your workplace investigation approach has such a profound impact on the likelihood of people using your ethics hotline in future, we would like to encourage you in your journey towards acquiring strong investigations support.

 

Above all we recommend that any specialist investigative service you appoint be well experienced in:

 

  • the investigation of reports and information in the specific context of the requirements of the Protected Disclosures Act
  • the sensitivity and complexity of engaging and building rapport with whistleblowers
  • the gathering of evidence in an ethical and legally compliant manner that will stand up to the rigours of the justice system.

 

About Whistle Blowers

 

Whistle Blowers Pty Ltd is an independent specialist ethics hotline service provider to private and public sector organisations in over 30 countries and on six continents, from its base in South Africa. Established in 2000, Whistle Blowers offers multi-channel reporting facilities that are handled in 16 different languages.

 

Please do not hesitate to contact Whistle Blowers Director Dale Horne, dale@whistleblowing.co.za, should you wish to discuss the content of this article or the ethics hotline service we offer. Learn more about Whistle Blowers at www.whistleblowing.co.za

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