Jane Fielding: Good morning everybody. I am Jane Fielding and I am head of the Employment, Labour and Equalities Team here at Gowling WLG in the UK. And I am very pleased to welcome you to this which is our third Webinar, in our series of four which we are doing over last week and this week, to replace our usual in-person seminar in our offices.
We really, really hope and have everything crossed that by June we will be able to welcome you back in person, but everything is so uncertain at the moment. Who knows? We will have to see.
But today's topic for this Webinar is internal investigations. How can they reduce risk, but also add value in your organisation? The world has stopped in many ways, as we knew it: we cannot go to the cinemas; theatres; sporting events; jump on a plane when we want to. But the rich tapestry of human behaviour has continued in various ways and that means there is always a need for things to be investigated.
Our speaker today is Simon Stephen, who is one of the Legal Directors in the team and he is expertly placed to talk on this topic today. He has got a wealth of experience advising as external counsel, but he also spent a few years away from us in the team working in an employee relations role in a major investment bank, a global investment bank, where he was actually conducting investigations but also looking at the framework around them and how you conduct them. So, he is ideally placed to share that experience from a legal and an ER perspective in the talk today.
So Simon is going to talk for about 25 minutes and we have left time at the end of this 40-minute session for questions. If you want to ask a question, please use the Q&A box, which you should find in the bottom of your Zoom screen, in the middle. I will keep an eye on the questions as Simon does his talk and we will try and pick up as many of them as we can at the end. In fact, you can also use that Q&A box if you got any technical issues and Lucy Strong who is helping us with the technology for the event today will do her best to get those sorted for you. Hopefully, there will not be any technical issues at all and it will all go smoothly and you will not need to do that, but, just in case.
So, on that note, I will hand over to Simon for the presentation.
Simon Stephen: Well thank you, Jane. No pressure on my Wi-Fi then, let us hope it stands up to this. So, good morning everyone. Thank you very much for joining us, I really value you taking the time to come and listen and hopefully, you will get some value out of this. What I am going to cover, leading on from what Jane has said is a talk really about how to get the most out of investigation, rather than the nuts and bolts of how to conduct the investigation itself. I am going to use my experience from in‑house as well as kind of in private practice and from being involved in many different types of investigations. At the moment it feels like that is pretty much my day job!
So, I am going to cover, first of all, a bit of back to basics. About what investigation is and about what investigation is not. Because it is very important, I think, to focus and fall back on the basics when doing investigations. I am also then going to run through the importance of having a framework, a structure in place and, as part of that, talk through the importance of planning and scoping investigations. And, then finally, just running through how best to get learning out of the investigation and where you can really add the value from doing so.
So, first up - what is investigation? Well, it probably sounds a very basic, silly question when doing a talk on investigations. But, as I said before, I do think it really is important to fall back on what the basics are. Particular, I think, in the disturbed times we are in now, where it can be a bit easy maybe to lose focus and, of course, you are not in the office. People are not in the presence of each other, kind of seeking help and guidance and picking things up. But what an investigation is, and this applies to any different types of investigations, is three‑fold really.
First of all, it is a means of collating and understanding information and understanding that point before embarking on any investigation or doing anything investigation wise, it is really important to remember because the focal point of it is gathering information, making sure it is understood because if the investigator does not understand it, no‑one else is going to really. Particularly, if that investigation is going to be tested in litigation.
And, then once you have gone through the process of collating and understanding the information, the investigation can then establish and present the facts that that information shows and, again, it is very important to remember that an investigation is, in essence at its heart, it is a means of establishing facts and demonstrating what they are. And, then finally, those facts can then be used as a basis for an independent decision.
And, of course, investigations can take many different forms and many different shapes. It might be a disciplinary investigation in which the decision is being taken by a completely different party, it may even be taken by a… a decision might be taken by the investigators themselves, depending on the remit of it. But, they can only do that having done the previous points of establishing and presenting facts, which are based on collating and understanding information. So, I think keeping that core structure and core focus in mind at all times, is very important.
But of course, we have to also think about what an investigation is not. An investigation is not… you know it is very different from a criminal procedure and it is very different from litigation. It is not litigation by proxy and indeed in most of the civil kind of issues which arise during investigations, and particularly in the employment and HR sphere the burden of proof is all based on the balance of probabilities. What you are looking at is identifying facts. You are putting it together and presenting it from which a decision can be made.
I think investigations can be tempting for individuals to start playing… being a bit of a police officer… kind of letting out that inner MissMarple, or other detective (laughs), whichever your favourite might be. But, I think it is really important to make sure that those principles are borne in mind and that is why it is important to fall back on those three kind of issues talked about at the beginning.
Because the risk there, if an investigation is not focussing on those three bits, if it does go off‑piste, is that you are going to go down rabbit warrens, you are going to start looking into places where you do not need to look… you know to find the "Holy Grail" or the "smoking gun". And, indeed, you may start looking in places where you should not be looking. So, it is very important to bear that in mind as well.
Of course, there are many different types of investigation as well and I have put up there, on the slide, kind of the five key ones, which we advise on and get involved in and carry out ourselves. But the points are that the principles for any investigation apply to whichever investigation it is. If it is a disciplinary investigation, the same principles really, generally apply to one that is a grievance and the same with whistleblowing and fraud, all the way up to regulatory. Of course, there are horses for courses, there are different things you might do, but the core principles all apply to the same type of investigation.
That does not mean, of course, that you have to have a full‑blown investigation with external barristers and kind of advisory working parties etc. for each and every one. You might be more inclined to have those for regulatory ones and fraud ones and perhaps whistleblowing as well. But, sometimes they will not need that, sometimes it might even be the disciplinary investigation which needs that because of the sensitivities. But it is important to understand that, no matter what you are looking at, taking a step back and looking at exactly what it is that you want to achieve.
So, as part of that, when you are looking at the investigation, you have reminded yourself about what the investigation is, you have identified the type of investigation it is. But there are still a number of things that then still need to be looked at in order to kind of carry out the investigation properly. I have put the principles ones up on here (slides) but you are going to have to look at whether you have a privileged investigation or whether it is not going to be privileged. There are benefits to each.
But of course, if you have a privileged investigation, whilst you get the benefits of the legal advice privilege, you get the benefit of it not being able to be shared widely… shared during tribunal proceedings or litigation. You are then stuck with the fact that, actually, if you want to do any action with it, what do you do with that question of privilege? So, that kind of all needs to be considered at the outset.
Of course, you need to think also, as well, about who is going to carry out the investigation. It could well be an internal investigation, in fact, most investigations are. And, in the context of the employment world, are likely to be the human resources or employee relations team, but it could also be some other designated body within the company. For example, the fraud team or maybe your compliance team carry out investigations as well.
It is important to identify that type of investigation… or who is going to be that investigator. So that you can also make sure that who else is involved as needs be and I will come on to that later when I talk about frameworks.
It is also important before embarking on investigation to think about whether you need an external investigator. Of course, as an external legal advisor, I greatly enjoy doing that and it is great (laughs) when we get that because it is great work to be involved in. But, you have got to think about very carefully about whether the investigation needs that, or merits it.
And the three… kind of primary types of external investigator that you are likely to see is using a barrister or a lawyer who do independent investigations. They have the benefit of being governed by professional regulatory rules and also have the expertise of understanding the law, particularly around employment cases and that can be very beneficial as well.
But, likewise, you might need a consultant if it is a particular type of issue. I can think of diversity and inclusion for example if there are issues around that being investigated, is there a specialist in that field who you… consultant who you may want to engage and, likewise, with an expert. You may be looking at an investigation, which is something, which is quite a niche issue and the people who have expertise internally may be conflicted, for example, if it is a small body. So, it may be best to take external advice.
So, that is a quick kind of overview of the types of investigation and the key principles to think about when thinking what investigation is going to be carried out.
But, what I then want to move onto is the importance of having an investigation framework. I think, here, what is important is that… making sure… to get the value out of investigations and to make sure that risk is mitigated. It is very important to make sure, in my view, and this kind of comes from personal experience as well through running them and through running governance programmes in‑house, is that the… there is a general framework and understanding of how investigations are run in the company. What they are; what they are there to achieve; and also who else is going to be involved.
So, I have put there, on the slide, kind of a bit of a reminder of it. On the top is that general principle point, making sure that the general principles of investigations are very clearly set out. So that anyone involved in an investigation in any context or any people who work within them, understand the general principles from which they are to work. I am not saying here that you need to have very detailed policies and procedures. I, for one, am not one to advise on having policies and procedures for the sake of it. I know many of you will already have many in place.
But, it is very important to have set out kind of those overarching principles so that people understand and then that feeds back down into the teams of investigators or the investigators that you have. You may have a number of different people who carry out investigations in different ways. Of course, we are not just looking at HR and employment ones here. Making sure that they follow the same principles is going to be very important because you get consistency and making sure that actually everyone understands what is going on. And that they understand their roles and how it ends up.
And, as part of that framework, it is also important, in my view, to make sure that the investigation team and the investigators involved in it, understand who the correct stakeholders are with whom they need to engage. For example, if you have got an HR and employment case which may have an element of fraud, it may be that you need to link up with the internal fraud team. Now, this could be for a number of different reasons, but it is likely to be that the internal fraud team will have their own remit and their own key operating procedures, which will require them to be involved in some way, or form or another.
So it is important in the framework that is set out, how different parties, how different stakeholders will interact. And, of course, there is the added bit there about the learning and development teams. How is any learnings from the investigation going to be drawn out and the framework can set this all out, so that it is very clear? And as part of that, of course, there are the escalation points as well. To whom do people go with particular issues, such as whistleblowing and things like that? As the investigation goes on, are there whistleblowing elements? Who do you contact and things like that?
So, I think, having that consistent framework will greatly assist the investigation go smoothly and make sure all the information and processes are captured. And, of course, that links up with the control owners as well. If you are doing an investigation where there is an element of a control failure or control breach, it is important to make sure that, of course, confidentially permitting that control owner as well. Not least so that they know what is coming.
As an example from my in‑house days, I was involved in a big investigation involving procurement issues. So, I was looking into that and there were going to be learning points that came out of that. So, from the very early days on, we linked up with the procurement team and the learning and development team to make sure that they were kind of aware that this was coming up. And, of course, then that meant that any policies or procedures, which were being looked at in the meantime, could factor in the fact that there was going to be some learning points coming along the way. If we had not done that, then it could well have been the case that a new policy, new training was launched without any input, which then defeats really the purpose of doing it.
But, of course, having the framework as well can set out clearly where the advice comes from. Who is going to advise on the principles and who is going to advise about… provide the independent HR advice for example, or legal advice and what are the parameters around external advice? When should you get these?
And, then looking back at the types of investigation (from the previous slides) the framework can build in the parameters and kind of principles for when those different types of investigations kick in. When should an investigation be privileged? When should a case involve an external investigator? So, I think having it all in one place will greatly assist those carrying them out and really help to add value towards the end.
And, of course, as part of that framework in itself, you are building the responsibilities of the investigator. Making sure the investigator or the investigation teams, those responsible for the investigations, have a very clear remit; they know what they are doing and they know where their responsibilities sit within this wider framework within the wider organisation.
So in the colourful triangle or pyramid that we have got there (slide) right at the core of that is the process. The investigator and the investigation team, they are responsible for their own process. So, if we have a human resources or employee relations team, it is their process, they own it. But it is their responsibility to make sure that that fits in within the wider framework, which means that you have to make sure that they communicate properly with the other stakeholders… you know… set out a mind map.
So, for example… taking the Ford case as an example, does the HR/ER team liaise with the fraud team to make sure they are following consistent patterns or the right things are being done, in line with each other's kind of own responsibilities?
And the investigation team will have the responsibility to make sure they source advice in the proper way, in the appropriate way and in a consistent way, which matches along with the framework. And, likewise, perhaps most importantly, it is their responsibility to make sure that the correct people are trained. So, the investigation team are trained in the process, in the comms and in the framework to make sure that when they are doing an investigation they do not do anything which is outside what the company expects, they do it all within this framework, within the whole remit so that the decisions made are consistent.
So, to recap on that, the value, I think, of a framework for investigations is at the top… is accountability and quality. By having a framework… by having a structure in place by which everyone operates you can really make sure who is accountable for what and it can really help enhance the quality of the investigation. And the better the quality of the investigation is, the less risk there is going to be and the more value you can get out of it. And, of course, the better it is and the more clear the framework is, the less cost it will be and the quicker you will be able to get things done.
But, I think, also really importantly the value of a framework is to have consistency. That is consistency across an investigation team, on an HR team or ER team, you may have a number of people, maybe even being responsible for different business units. And, from a largely holistic point of view, as I said, you want people to be following the same general principles in line with that framework. So, it is really important to have that in there.
And, of course, globally, if you have a global organisation, there is going to be investigation teams across many different jurisdictions, different time zones. And, whilst the law and process are very very different to the extent you can make… you can align things, make sure it is consistent or at least people understand each other roles and why things have to be done differently. Of course, this leads to strength in numbers and partnering.
You can share lessons learned, you can share processes better, kind of best practice and it just generally helps to keep that communication flow by having a framework with all those involved in the investigations. And, ultimately that then leads to improvement and, as I said before, getting kind of more value out of your investigation process.
So, we understand what investigation is and we have looked at putting in a framework and, I think actually just before I go onto the planning thing, when I talk about framework, I will just stress again… I am not saying you have to have some all-singing, all-dancing, kind of… format in place. It is just making sure that actually you have something in place, which binds everyone together and helps with that consistency, which can then apply to any investigation no matter how small or big.
I think in particular… so moving onto planning, I think planning then becomes the key bit about making sure that the specific investigation you are carrying out is one which is fit for purpose, carries less risk and ultimately you can benefit from. And, I think that is particularly so at the time now with COVID, where actually investigations can be quite difficult and I will talk through some of the practicals for that, but add in a lot more different considerations.
Now, I did think about having a more exciting slide here for this, with some quotes from Baldrick from Black Adder about "cunning plans" but ultimately I went down the "vanilla" route of just splitting planning into four stages.
So they are scoping, so scoping the investigation is going to be absolutely key, making sure you understand what it is that you are doing and then making sure you have got the right materials in which to carry out that scope.
And then you have got to plan about what you report. It is going to look like… How are you going to finish this investigation? And then the final bit, I think, is often the bit that gets forgotten and this is the bit where it can really add value is what happens after the investigation is done? What happens with the report?
So, coming on to these bits broken down. As I said, planning is a fundamental aspect to mitigate risk and adding value. So if you are looking at planning the first bit of scope. This is where the framework comes into use, because you can use that to look at… 'Actually what is the investigation I am doing? How does it fit in with that framework? Should this be a privileged investigation? If it is, who do I need to get a sign off on that?'... are examples.
But also, as part of the scope, we are looking at what the issues are. Again, this falls back into what the purpose of the investigation is, about the understanding and collating facts and then presenting them. What are the facts that I need to present? What are the issues that we are looking at? And, you can then look in the scope as to the boundaries and particularly I think it is very important in investigations to set out what is…not only set out- but be clear about what is not included in the investigation. So that you do not then run the risk of becoming… of unleashing your inner police officer, going down rabbit warrens and going down places that you do not need to go, to meet the purpose of that investigation.
So once you have got your scope clear, it is then really important to plan out your materials and who are you going to speak and how you are going to speak to them is very different now with COVID.. Of course, we are not in the office, or not many of us are in the offices, so how are you going to arrange that? Is it going to be by Zoom, Teams, how is that going to work with the individual? You may even have issues with people who are on furlough. What is your approach going to be when interviewing or investigating people who are on furlough.
You have also got to think then about the added risk of people… actually what support can we give to that person? Are any of these people I am going to interview, these witnesses or indeed the subjects, are they more vulnerable? Is it going to bet more stressful for them to do it, without doing it in person? So, thinking about how you are going to go about that.
And, likewise with the materials, about the documents and the data that you are going to be looking at. What is it, that you are going to need and how are you going to get it? It may be that you need expense data, so you need to think about doing things like that. But, I think, particularly in COVID times, thinking about where is that information? Where is that data? Is it going to be in kind of Skype chats, for example, is it going to be in WhatsApp? What is our policy on WhatsApp? Can I get hold of people private…? WhatsApp chats? Or, indeed, are there issues with Zoom, can I get Zoom history? And things like that kind of… you have got to really proactively think right at the outset: 'what are we going to do?' Because a lot of this information is going to be accessed in a different way because of the COVID issues.
And, I think, as well as materials, think about if there are any experts you might need to look at. I am not necessarily meaning external experts, a lot of conversations about experts in the press. They may be internal. So, if you are looking at something and I will use the expenses investigation as an example. If you are looking at an issue into the expenses, into expense misuse, do you need to get somebody who actually owns that policy, owns that process to tell you what it is? How are you going to build all that in? But it could also be experts in niche things like market trading, how things…all those work as well. So you have got to plan all that.
And, also as part of the planning, making sure that you understand what the report is going to be. I say report because most investigations will end up with a formal report of some sort. As part of the scoping, as part of the planning for this, make sure it is clear about what that report is going to be used for. Who is it going to be seen by and what are they going to use it for? And then you can think about the format of that report and then you can build in about who is going to see it and how is it going to be distributed.
I am just closing off a detailed investigation which has been going on for a number of months and one of the most difficult parts of that is that once you have got the report is… Who is going to see it and how are we going to take it forward? Part of the planning, right at the outset, with a valid working party has meant that that process is quite smooth and we are able to just kind of close it off and move forward. So it is really important to kind of build that in.
And then the final bit about planning is this point that I made earlier about the planning in the post report kind of phase. One of the big risks with investigations and one of the big risks of them not adding value is the dangers of them sitting there gathering dust.
Some investigations can take a long time and whilst what… something might be an exciting issue to start off with, it can lose that excitement, lose that gloss, as things go on. So, it is really important to make sure that, as part of the process, you are already thinking, right at the outset of the planning, about… What we are going to do with this report. What are we going to do with the findings of this investigation?
And, as part of that, it is important to plan what is next in the process. Now that may not be for the investigator themselves to plan but somebody… whoever is kind of responsible, whoever commissions the investigation if you like, has to already know what is next and what is going to happen with the report. But, I think it is also important thinking what happens after that. What happens after that next stage? And an easy example is the disciplinary process. You have an investigation, which then goes to a disciplinary meeting that is the next step in the process. After that, there is going to be an appeal process.
So as part of the planning, there is the investigator who is planning what they are going to do, there has to be someone else planning about what they are then going to do with the investigation themselves. And as part of that planning about who is responsible for all those things. Who is responsible for taking it forward? Who is responsible for making sure that the investigation happens? Who is responsible for making sure that any action points are then actually addressed and documented?
And, as part of that planning, who will advise in the next stage? Often the advice for an investigation is independent advice at that particular stage. If there is going to be another stage and again the disciplinary process is an easy example. Who is then going to give that independent advice to the disciplinary and to the appeal to make sure that the independence of the investigation is not compromised?
So, all that planning, all that kind of thinking things through then leads us to you know obviously what happens after the report. But, I think, it then leads to making sure you get the best out of your investigation, getting the value. Of course, the primary point of the investigation is to identify the facts for the particular issue and then making sure you can take that forward.
But, I think, as with any investigation, from the very smallest one from a disciplinary through to the biggest regulatory one, there are always going to be learning points that come out from it. And there are two reasons why they are very important to build within in terms of risk and value. I think the value one probably speaks for itself. If there are learning points, improvements, it is going to be pretty vital and crucial to pick those up and make sure they are dealt with.
But also from a risk point of view, if an investigation makes finding… an investigation identifies facts, you know control areas, or things like that then, making sure that the learning points are addressed should mitigate the risk of that issue happening again. And it will also mitigate against the risk of an employment tribunal in another case saying "well, actually you have had this before, but you still didn't do anything about it". So, it is very important to kind of build that in.
So what I have put here on the slide is the continuous learning cycle. I do not think that is particularly my own phrase (laughs) but it works for here. And what this is… when you get the outcome of a report as I said, there is always going to be learning points, there is always going to be feedback. The importance is to make sure that those learning points and feedback are collated and pulled together and then somebody then thinks about how we can put those learning points forward.
And I am going to fall back to my framework before, my suggestion of the framework before. As part of that process, you can document who those stakeholders are. If you remember, I mentioned the learning and the development teams. You can build it into the process that everybody understands that this is what happens. So what you do, how you do it, you feed that back in. There are then the obligations on that team to implement those learning points whether they are through training or through control reviews, whatever they might be.
And, as part of that, when you next go through another process, an investigation process or expense, or whatever it might be, those learning points, those control improvements, that training all feeds up into that and then you should get ideally a better outcome. A better outcome for the actual issue itself and also a better outcome for the next investigation. So, it really is a continuous learning cycle.
And, as part of that, I think there are four questions to ask when doing an investigation and as part of the planning. The first is… What was the investigation asked to do? What is the purpose? What was the information that was supposed to be understood? What were the facts that were going to be presented? And what then happened? And then… Where are the action points for recommendations? Where are they kept? Where are they tracked? Who has responsibility for taking them forward? This is the risk of investigations gathering dust or not adding the value. It is done, people move on and it just sits there. Making sure that those action points and recommendations are kept and tracked and then somebody has responsibility for taking them forward is going to be really important.
And then finally… Who has accountability for closure? How do you close this off? Who is it, who has ultimate responsibility for that? It is very important to make sure that it is clear because then that should then happen. The report should then be closed off. The learning points are moved forward and you move into the continuous learning cycle. And, again, I will just fall back onto the point about the framework. All of these questions, all of these points can be added into that framework and that overarching kind of process itself.
So, I think I have reached the end of the talk. I have kind of reached the allotted time there. What I wanted to achieve from that was go through a kind of holistic overview about how companies, I think, should take investigations forward and approach them. Of course, there are many, many kind of questions, the nuts and bolts of investigations, which I could have gone through, but that would have been another kind of day talk in itself. But, of course, we are now going to be open for questions and if there are follow-ups after this Webinar itself, then very happy to receive them as well.
Jane: Thanks, Simon. We have had quite a few questions through on the Q&A, so we will take as many of those as we can in the last eight, nine minutes or so of the Webinar.
So, the first one picks up on a point you made about investigations themselves potentially being global, but it broadens that out in the sense that often there are stakeholders outside the UK. So if you are a UK subsidiary of say a US parent and the stakeholders who are interested in the outcome of the investigation will be coming from different legal cultural perspectives. Do you have any advice…? I think this is the question… on how best you can engage when you have that dimension in an investigation.
Simon: Yes, that is a great question there. But I think one of the problems there is that often things like that do not come to the mind until something goes wrong you know when there is a clash. And I think that is actually a point that I should have made at the outset is that with having all these frameworks and things in place you can kind of hopefully prevent the learning from things going wrong.
A lot of it depends on kind of how engaged kind of people are, those different stakeholders. I would see, if I was doing an investigation, I would see kind of my US or counterparts in other jurisdictions as a stakeholder and building it into the framework. So, that is why, I think, having the framework, having those kind of principles is really important. And a lot of it… it is hard you know I am not going to lie (laughs) about that. It is hard because it is very different you know making sure that people understand why, if you are interviewing someone within the UK, they need to be represented… these kind of things.
But I think it is very much kind of building into the process and making sure that actually you have the engagement with different bodies and doing some form of training or getting to know or kind of roadshow. Or even- just even getting together in… well obviously not a room these days, but getting together for a half‑day workshop to say "look, this is how things run and why" and some case studies of kind of how a tribunal works.
And indeed put in some horror stories, I always found in… when I was in-house, that the best way to get kind of attention is to demonstrate that actually, if we do not do this, this is how much it costs in the UK. So kind of putting in those horror stories, I think. So… yes… it is not easy but going through that engagement process, using the framework and trying to get people to see each other as stakeholders is going to be the way.
Jane: Okay, thank you. So there is another one here which sort of goes right back to the beginning of any investigation in the sense is part of the plan and it is quite specific. Who chooses the investigator?
Simon: That depends on how it is all set out for your company, what works best for your company. But I think again that is very important why to have the framework which sets out who chooses it and you then have control in a way on who the investigators are. Because what you do not want is for people to go and choose their friend, who they know from old. You know, someone who they might use to have worked with. Because then there would be questions about independence and that can add real risk when it is challenged later on which is "this is not a fair and reasonable investigation because it is your mate from school" kind of approach.
So, there is no kind of hard and fast answer as to who that is, but it is important to have it set out about who it is and it goes back to that point about the types of investigations you know externally, internal, often it will sit with legal or indeed whoever is responsible for that. So if you have an employee relations team and they are the ones who are responsible for those investigations, it will be their choice, possibly, but with the guidance of legal.
But it is very important to make it and to keep track about who those investigators are so you are not always using the same person and all those… you know, make sure they were properly trained etc. But it is a choice for the company to make but it should be made in a consistent way in line with the framework.
Jane: Yes, and availability is often really key is it not? Because I think people tend to think that it is an add on to the day job but, actually, when you are in the middle of one, it needs to be your day job to some extent, does it not? So that you are not responsible for delay.
So, there is another question here, well there is a couple of questions actually around the investigator's role and the scope. So one is - in an employee disciplinary investigation, what is your advice about whether the investigator should actually be recommending whether there is a case to answer or whether they should limit their report just to findings of fact and then somebody else makes that decision as to whether it goes on to the next stage.
Simon: Yes, I think either way works. I think, again, I said I am kind of… doing investigations is kind of my day job and what I do and a number of the clients I work with… they do not want the investigator to make recommendations. Because they, in fact, leave that for the body internally who decides… so that they can have consistency and make sure that is it in line with how they do these things.
But others want the investigator to make the recommendations so it truly is a genuine independent referral. But, actually, there are cases to answer so again it is horses for courses. I will put my… I will come off the fence there and say my personal preference is for a report to make recommendations that there is a case to answer or that actually there are facts, which are not aligned with the policy. You know, this is the facts of the policy, these are the facts, on the face of it there is a case to answer. Because it just gives that… it gives a purpose for the investigation and then it enables a disciplinary panel to really look at that kind of… and then just make their own decision based on that.
Jane: So there are a couple of questions here which I am going to take together and apologies if anybody can hear my dogs. Somebody was supposed to be keeping them quiet, but they seem to have broken out. So there is a question about the scope of investigations. So, sometimes as you investigate, you start off with the terms of the reference and the things you are looking at and then other incidents of misconduct are uncovered along the way. So what tips do you have for whether it is okay to investigate those? So, how do you do it to avoid the employee saying "well, this is just a witch‑hunt, you are determined to try and find something that you can get me on"?
Simon: Yes, definitely. I do not think there is any investigation that I have done or advised on where that has not happened or you know something is uncovered. Because whatever you look at, so you get data, you get kind of internal chat messages or something like that. There is always something there, a referral to something on WhatsApp. You think "oh, goodness me, what's that".
So, I think two kind of primary ways of dealing with that. One is in the terms of reference, make it clear what will happen if new things come up, what that process will be and that can just be two lines you know… if other things come to light… this is what will happen. But again you kind of fall back on the guiding principles and the frameworks to make sure that actually whose decision is that, to investigate further? I do not think it is the investigator's decision to make. If something else comes up, it is for the investigator to come back to the company, to whoever is commissioning them, whoever has responsibility to say "okay, what do I do with this?" and then a decision can be taken.
And, again, it is kind of that avoiding being MissMarple or Poirot or whoever it might be to say actually, do we need to do this, as part of this? Can that wait? Do we actually care? A lot of the time if things come up in the heat of the investigation and you get carried away, you think it is more excitement and then you think actually, no I do not… well obviously I care, but it is not of interest right now. We can park that or indeed that is for somebody else to deal with.
So, I think it is always good to make sure the investigator is clear about what they are to do. Making sure that in the terms of references, it is clear to an individual that if things do come up, it may be investigated, but setting out who will make that decision and how that will then be communicated.
Jane: Okay, thanks. So we have actually run out of time and not got to all the questions, but as Simon mentioned earlier we will come back to any of you who had a question that we have not managed to get to in the time available and thanks to all of you who have put those in the Q&A.
So, that is the end of the Webinar now. You will get a request to do some feedback popping up in your internet browser. We would be really grateful if you could fill that in. We do read them and take account of your thoughts for shaping future sessions, so that will be really helpful if you can find a couple of minutes to do that.
Otherwise, I hope you found that informative and we hope to see as many of you as possible at our fourth and last Webinar in this series on Thursday when we are going to be looking at dismissing senior executives. So, hope to see as many of you there as possible but otherwise hope you have a good day.
Simon: Thank you.