With the embedding of whistleblowing laws and policies in many jurisdictions around the world, employers are spending increasing amounts of time undertaking investigations into a myriad of employee behaviours. Whether it be allegations relating to racial abuse, bullying, sexual harassment, or corruption, internal investigations are on the rise. What are the key cross-border investigation trends? What are the challenges employers have faced with whistleblowing in the remote working world? How can employers build an effective speak-up culture? And amid a rise in public scrutiny, how can – and should – employers use legal privilege to protect against disclosure of workplace investigations? This blog post summarises some of the key themes discussed at a panel session on workplace investigations from the European Employment Summit held in September.
Material increase in workplace investigations
It is clear that employers around the world across all sectors are seeing a material increase in the number of concerns raised covering the full spectrum of issues, from financial misconduct to #MeToo allegations. While this could point to a significant deterioration in workplace culture, this is probably in fact due to a combination of factors making employees more likely to speak up. Firstly, employees are now more aware of their rights than ever before and secondly, the introduction of new, increasingly strong regulatory frameworks for whistleblowing encourage employees to speak up and offer greater protection when they do. Many employers are also seeing a surge in reports made about incidents which happened in the past, sometimes many years ago, as individuals have had time to reflect during the pandemic on events that happened in the workplace in the past.
The challenges of the pandemic and remote working
When the pandemic first hit in 2020, employers in many sectors found it more challenging to stay close to their employees and their views due to remote working. Employers in those sectors that moved wholly or mainly to remote working had to be creative to find new ways of connecting to the workforce and understanding what employees were thinking. Many increased their use of tools such as interactive/online employee surveys to do this. Many of these employers are now taking these experiences forward and looking to get ahead by collecting data on a regular basis to understand the culture of their organisation.
The pandemic has also changed the ways in which employees are choosing to speak up. Where previously minor issues would have been raised directly with a line manager or HR, since the pandemic, many more issues are now reported formally in writing and this trend does not appear to be diminishing. This gives rise to additional workload challenges for employers seeking to delineate between minor workplace infractions and the more serious ‘whistleblowing’ issues.
Building an effective speak-up culture
Employers may wish to think about the tools they have for reporting and ensuring these appeal to a wide audience. Speak-up apps are increasingly utilised as being a good way to bring together policies and support resources and ensure these reach the widest audience. Apps can also appeal in particular to the younger generation as a softer and more accessible format for whistleblowing.
It is also critical that employers report back to employees about how they are dealing with issues raised, to strengthen and reinforce a strong speak-up culture. While employers will, of course, only provide feedback on specific investigations to the whistleblower (if this is appropriate at all), they should consider finding ways to report back to the wider workforce on overall trends, for example, the number of reports made and any trends identified and steps that are being taken to address those trends. This data can then be fed into workforce training for future years.
Nevertheless, confidentiality remains central to maintaining the trust of the workforce in the whistleblowing process and robust safeguards around confidentiality can encourage more employees to report concerns in a non-anonymous way (which makes investigation of their concerns much easier). The instinct, particularly on sensitive investigations, is that limited feedback should be provided and that the individuals involved in the investigation are kept to a minimum.
Using privilege in workplace investigations
Where employers wish to assert legal privilege over an investigation (in countries where privilege is recognised), it is crucial to determine this at the earliest possible stage of the investigation and to structure the investigation accordingly, potentially involving external counsel. If an employer wishes to assert privilege at a later stage, this can be very difficult – often many documents have been created prior to the matter even reaching the legal advisers, especially in large organisations where in-house counsel often do not have the capacity to supervise the investigation of every issue raised. Many employers instead take a more pragmatic approach and allow the fact-finding investigation to be run by HR or ER, and do not attempt to assert privilege over the investigation documents, interview transcripts and investigation report, instead focusing on ensuring that any documents about the decision of the outcome and advice given to the decision-maker are privileged.
What to watch out for in the coming months
There is no sign of the upsurge in concerns raised by employees coming to an end – ESG is high on the agenda and as generation Z filter into the workplace, we can expect to see the workforce more emboldened to raise concerns where they arise. It will therefore be essential for employers to ensure their reporting channels, many of which have been newly established in preparation for implementation of the EU Whistleblowing Directive, are ready and that a functioning system is in place to triage the reports received. Some Member States are yet to implement the Directive and may gold-plate the legislation in order to provide even further protection to whistleblowers. Given this environment, it will be interesting to see how global organisations react and whether they attempt to “level up” whistleblowing policies for their workforce internationally.