The Dutch Whistleblowers Authority (Huis voor Klokkenluiders) publishes guide on Internal Investigation for employers
More and more people are daring to speak up when they suspect wrongdoing or other integrity breaches at work. The Dutch Whistleblowers Authority (Huis voor Klokkenluiders) has also observed that the number of people requesting advice on this matter has doubled in the past two years. This is due in part to the focus in the media and in politics on inappropriate behaviour. The Authority also receives many enquiries from confidential advisors, reporting persons, and persons concerned about internal investigations following these reports. Many of these enquiries are about involvement (or lack thereof) in the investigation launched by the employer, as well as about its diligence.
To help organisations set up and conduct good internal investigations, the Dutch Whistleblowers Authority has published a revised guide on Internal Investigation. This version has been revised according to the Whistleblowers Protection Act (Wbk), and it can be used to investigate all reports of integrity breaches, including social insecurity and/or suspicions of social wrongdoing (whistleblower reports).
Wilbert Tomesen, Chair of the Dutch Whistleblowers Authority, explains, “Almost every organisation will sooner or later encounter reports of integrity breaches. Many employers become stressed and immediately launch an internal investigation, even though mediation or a grievance procedure can be more effective in some cases. In addition, the conclusions of an investigation, as well as the period during which the investigation takes place, can sometimes have far-reaching emotional and financial consequences for all parties involved. It is therefore very important for employers — especially in calmer times — to think carefully about when and how they will set up and execute internal investigations. Choosing as an employer whether and how to investigate is also part of protecting people who dare to speak up.”
Regulations and practical tips
The brochure describes what it takes to organise an internal investigation and how the organisation can prepare for it. It then focuses on the assessment of a report, the investigation itself, and its conclusion. Finally, the focus turns to any steps that may follow, including notifying the reporting person and the persons concerned, employment or preventive measures, aftercare, and data handling. Substantial attention is also devoted to the aspect of communication — not only with the reporting person, but with everyone involved in the investigation, other employees, and any other stakeholders in the organisation.
The brochure contains both obligations under the Working Conditions Act and Whistleblowers Protection Act, as well as practical tips. When reporting suspected wrongdoing, the time of reporting is important for the reporting person to receive legal protection. The employer must also send an acknowledgement of receipt of the report within seven days and to notify the reporting person within three months about what will happen to the report. These legal deadlines do not apply for other integrity breaches.
Checklist of key elements in an internal investigation
When an organisation decides to proceed with an investigation, it should be executed from start to finish in the best and most diligent manner possible: factually, objectively, and based on the principle of hearing both sides of the argument. The following elements are crucial in an internal investigation:
1. The organisation is set up and prepared for an internal investigation
If internal officers are going to conduct or assume another role in an investigation, they should be prepared for their task through education or training. Avoid role conflicts. For example, an attorney (in-house) whose job is to protect the interests of the employer is not suitable as an internal investigator. When outsourcing, the party to whom the assignment has been awarded must comply with legal requirements. Create a list of parties who can execute on-call investigations as needed. Further, employers should have established the reporting and investigation procedure and publicised it within their organisations. To protect the privacy of all parties involved, the manner in which the investigators and the commissioning organisation will handle the processing of the information collected should be defined in advance.
2. The investigation begins with a clear and defined mission
The assignment states research questions to guide and limit the scope of the investigation. You should therefore give careful consideration to the formulation as well. Avoid subsequent adjustments to the investigation assignment. The reporting person should also be involved in formulating the research questions. The research questions should obviously not come from the person concerned, nor should it come from employees who report directly to that person.
3. State the framework of standards that will be used for assessment
An integrity breach involves the transgression of standards. These standards could be vested in laws or regulations, agreements within an industry, or a proprietary code of conduct. Be clear about the framework of standards against which the integrity breach will be assessed. During the investigation, it is also important to capture the context within which the suspected integrity breach occurred. To this end, you should determine whether the person concerned has or could have taken note of this framework of standards (whether internal or external).
4. The investigators must have no personal interest in the outcome
In addition, fact-finding investigators should ideally not know the reporting person or the person concerned and, if they do, they should be at a sufficient distance — including in images presented to the outside world. They should operate independently and with an open mind. Ideally, at least two investigators should be involved in an internal investigation, thus allowing for the application of the four-eyes principle.
5. Only information that has been gathered in an objective and verifiable manner and that is supported by reliable sources can count as facts
It is up to the fact-finding investigators to extract facts properly from the collected material. A diligent investigation will highlight the relevant circumstances under which the suspected integrity breach occurred — even if those circumstances open the organisation to criticism. Such diligence requires investigators to scrutinise both incriminating and exculpatory information. The analysis in the investigation report provides only the facts. Opinions, views, and interpretations do not belong in it.
6. Be critical of investigative material
Fact-finding investigators should critically evaluate and assign appropriate value to the material collected. For example, they should not blindly rely on the accuracy of work experience surveys or other surveys. They would also do well to verify the accountability of such studies to determine how reliable the outcomes are.
7. Investigations should be conducted uniformly and consistently
The identity and position held by a reporting person, a person concerned, or a witness is irrelevant to the execution of the investigation. The investigation should always be executed in the same way — indiscriminately — and according to the same protocol. This principle can be expressed in the investigation assignment by limiting the research question to the case, without including the names of the persons concerned.
8. Fact-finding investigations should be proportional and subsidiary
The depth and breadth of the investigation should match the nature and severity of the suspected integrity breach (‘proportionality’). Moreover, investigators should always use the lightest possible means of investigation with which they can achieve the intended objective (‘subsidiarity’).
9. Right of rebuttal
During the investigation, facts are collected to answer the research question and any sub-questions. They also address the role of the person concerned. One essential condition for an investigation is that the person concerned should have an opportunity to respond to the facts surrounding that person’s alleged role in the report. Decent rebuttal also requires having time to prepare for it. In some cases, this also means giving the person concerned access to documents if doing so is necessary to properly exercise the right to rebuttal.