Von Cédric Biedermann

In our modern world, the increased pace in communication and information sharing implies that the reputation of a firm has a bigger impact on its financial results like never before. Proactive policies to protect the firm from eventual damages are more and more relying on the duly consideration of “HR incidents”.

Studies report that every 7^th employee in the European Union has been exposed to work-related mistreatment – harassment, mobbing or discrimination. As an employer, there is a legal duty to protect employees’ well-being, safety and health, but also to address such incidents when preventive measures have failed in the first place. In parallel, unduly treated incidents may lead to financial liabilities and reputational damage, which may hampers the ability to thrive in the business. Such working climate can deteriorate and, as a consequence, disrupt daily operations. While some cases can be resolved informally through an early resolution process, others call for a deeper assessment in the form of an investigation.

Investigations triggered by the aforementioned types of behavioural misconduct, also called Workplace or Human Resources investigations, have become an everyday part of corporate life. Despite such frequency, businesses still find Human Resources investigations particularly challenging and problematic, as they require a specific approach and often lack the “hard” evidence to substantiate the allegations. A Human Resources investigation consists of interviewing the right people at the right moment and understanding the issues while analysing and reporting the results of findings, with impartiality and objectivity.

For instance, should an employee under Human Resources investigation be generally suspended? The answer might be written in the policies of your organisation and might be part of the procedure. Nonetheless in weighing up the interests at stake, the impact of the decision should not be minimized and it has to be considered any leaks that may jeopardise the investigation or affect potential innocent employees if wrongly suspected. However, if the suspected employee may interfere with witnesses, a suspension shall be considered.

Mounting pressure on investigators, arising both internally and externally, can lead to irrevocable mistakes if poorly managed. Even before the investigation starts, there are various obstacles to overcome. Learn more about the main challenges and ways to tackle them.

The rising challenges in Human Resources investigations

Many factors contribute to the increased complexity of Human Resources investigations. There is an urgency for people related issues and a top-down pressure to resolve them. Investigators must guarantee confidentiality, give due consideration to potential conflicts of interest and present the findings fast in case of litigation. Experienced resources may not always be available to conduct the investigation. Organizations are often not adequately prepared to cope with such issues and your organization may be held liable for the procedure’s shortcomings.

In addition to the fact that most (internal) perpetrators are from the management group, the sensitivity of the issue is intensified and confidentiality must be ensured at all times. Excessive pressure from top management, wanting to conclude such matters as quickly as possible, can be detrimental to the ultimate goal of exhaustiveness of findings. Keeping short deadlines is important, but quality and the correct sequence of steps during the investigation are paramount.

The unique nature of Human Resources investigations – as there are no such two investigations alike – often requires a combination of expertise, due to the fact that Human Resources investigations frequently lack material evidence, obtaining key information from interviews becomes a keystone to solve the case. The Human Resources investigation is frequently operated in particular circumstances subject to psychological fragility of alleged victims and potentially an intimidating climate. The success of the investigation is therefore greatly dependant on the investigator’s ability to deal with these sensitive matters.

Even if all abovementioned concerns have been adequately addressed and cleared, the tasked investigation team comprising of different specialists, as well as the organization as a whole, should prepare for the potential scenario of a litigation when dealing with cases of discrimination, bullying, mobbing, retaliation, harassment, internal incidents, other mistreatment or inappropriate management style. The credibility of the investigation and its findings can be challenged in court by authorities or the counterparty and may result in challenging situations at the workplace. This adds to the increasing complexity, which sometimes requires interdisciplinary and even multinational teams, in order to adequately conduct the investigation.

 First action points

Different types of misconduct require differentiated techniques and expertise when performing an investigation – in short, the approach needs to be adapted to the type of alleged wrongdoing. Nevertheless, there are general steps to be taken as soon as an investigation process has been launched.

One of the key aspects of an investigation is the reactiveness. Critical evidence and witness statements can become compromised if the investigative effort is delayed. Therefore the timing of an investigation is crucial. The pressure that is linked to an inappropriate reaction time might lead to mistakes. It is recommended to seek advice in order to not interfere in the coming investigation and to define a clear strategy to follow depending on the challenges and limitations. Furthermore, taking action early on might be seen as a clear “tone from the top” of the management and might also indirectly impact the organization’s bottom line by indicating a positive working environment and ethical culture where employee concerns have functional mechanisms to be heard and have their potential problems solved.

• Seek advice from your legal counsel

Always talk to your legal counsel even before starting a Human Resources investigation, as each initiated investigatory activity must follow the regulation in force in the jurisdiction where it is to be conducted. If applicable, determine whether an external third party can be involved at this step. The sought guidance applies in particular to the collection of evidence (if any), the forensic analysis of computer records to identify discriminating email exchanges (if any), the conduct and recording of interviews, standards and elements of proof and all dealings with the suspected individuals.

• Decide who must be informed about the investigated allegations – which departments and employees

Some employees, depending on the culture and the internal guidelines of the company, have the right or the need to be informed, e.g. the subject of the investigation. For the others, define a “need-to-know group” and ensure strict confidentiality to preserve the environment. Remember that unsubstantiated accusations, leaked to outsiders, can unduly harm the private and professional life of the accused.

• Identify and define what competences are required to adequately conduct the Human Resources investigation; assess whether such resources are available internally

Engaging employees with broad knowledge may rather harm your investigation. Consider composing your investigation team with narrow but well developed skills. You may need an employment law attorney, an expert in admission seeking interviews or a computer forensic specialist. Ensure the team’s availability for the whole course of the investigation.

• Ensure data protection and integrity

You may or may not request access to sensitive data on employees such as personnel files which are normally not disclosed. Whether or not such data can be taken into consideration will depend on the purpose and scope of the investigation and you have to strike a balance between data protection and the exhaustiveness of the fact-finding mission. Again, consult your legal counsel to avoid crossing the line and being held liable for any breach.

• Prepare interviews thoroughly

Interviews are undoubtedly the most important part in the Human Resources investigations. The obtained statements can often be the only source of information and evidence, as opposed to, for instance, fraud or cyber-attack investigations where perpetrators leave physical or digital evidence. Interviews with the complainant, especially for sexual harassment cases, must be performed by two interviewers, one of them being of the same gender as the complainant; aspects such as age or race should also be taken into consideration. Some particular techniques of interview are sometimes required in HR investigations, i.e. the cross-check interview aims at verifying selected information through several protagonists.

• Designate a professional investigator

A Human Resources investigation is not a coronial inquest, nor is it a police prosecution. To substantiate a complaint, the person investigating must clarify, from the information at hand, that it is more likely than not that the situation described did occur. Competing versions of events usually emerge and often there will be very little, if any, clear primary evidence. In any case, an investigator should still be in a position to make a decisive conclusion about a complaint based on the information reviewed.

Autor: Cédric Biedermann

Cédric Biedermann, KPMG’s head of the Corporate Intelligence team for the Forensic department has over ten years of forensic experience and is a Certified Insider Threat Program Manager and Fraud Examiner. He specializes in leading investigations regarding misconduct such as mobbing, psychological and sexual harassment, unfair treatment, extortion, exploitation, undisclosed conflicts of interest as well as corruption, bribery and fraud. As a Risk Profiler, he develops and implements effective and sustainable threat detection and prevention programs for a broad range of clients and institutions in order to assess the reliability, suitability and trustworthiness of the insider threat.

* Die meisten Blogbeiträge erscheinen in Deutsch. Ausnahmsweise erscheinen Beiträge auch in Englisch und Französisch, den Sprachen, in denen Schweizer Expertinnen und Experten in der Bekämpfung Wirtschaftskriminalität häufig arbeiten.