An internal investigation could be triggered by any one of a whole range of issues, for example, a suspicion of theft, alleged malpractice, or bullying or harassment. And it could involve anything that seems to go against the employer’s policies or is contrary to law.
Whatever the issue, it’s crucial that the employer handles the investigation effectively, taking into account issues of professional privilege, disclosure obligations, questions of access to evidence and also the protection of individual privacy and other rights.
For an investigation to be effective, it needs to be independent, objective, appropriately conducted and properly documented. If an employee ends up taking a matter to court, the court will look at how it was dealt with internally, before it got there and if it finds the process was unfair, for example, that could compromise the employer’s case.
A mechanism to enable employees to report on serious issues besetting a workplace has been available, particularly in the financial sector, for a number of years. Unsurprisingly, reporting mechanisms are better developed in some countries than others. The US largely leads the way, but Europe is developing fast: the EU Whistleblowing Directive of 2019 required member states to put in place national legislation to instigate reporting schemes at company level by December 2021.
Janusz Tomczak is a partner at Raczkowski, Poland and Chair of the Ius Laboris Expert Group for Internal Investigations.
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