Internal investigations involve more than clarifying the facts relevant to criminal offences to protect an organisation. A proper investigation of critical issues is often the correct approach where they fall far short of possible criminal liability. Focused planning of investigations influences the quality of the results as well as their legal usability.
Internal investigations are conducted more and more frequently in organisations and have become part of everyday management practice. The reasons for investigations can vary in type and severity, from a bad atmosphere in a team, to accusations of discrimination or criminal offences.
A working compliance structure, a whistleblower system or the public prosecutor appearing at your door can reveal that a matter needs to be clarified. In these cases, internal investigations must be planned and structured.
There are currently no concrete legal requirements for the implementation of investigation measures. A draft Corporate Sanctions Act contained regulations on internal company investigations and on employee interviews. However, it failed to be passed during the last legislative period. According to the new government coalition agreement, the issue will be taken up again and a precise legal framework for internal investigations is to be created.
Nevertheless, an internal investigation does not take place in a ‘lawless’ space. Various regulations have to be taken into account; for example, regulations on protection against dismissal, worker participation and data protection must be complied with. Given this background, what needs to be considered during planning?
First, it is important to determine what will be gained from the investigation. Should the results lead to a report to the executive or supervisory board? Does the investigation serve to prepare or support official audits? Is it being undertaken to uncover misconduct by employees that may result in labour law sanctions? Is the investigation intended to show the staff that an issue is recognised and taken seriously?
Do things have to be done quickly and do results have to be available by a certain date? Is it important that the timing of a pending transaction should not be affected? Has an authority announced an audit? Does evidence need to be secured?
When it comes to breaches of duty by employees, the two-week notice period must be kept in mind when issuing termination for cause.
The organisation must decide who should carry out the investigations and individual investigative steps. If it uses its own staff, the question arises which department should take the lead: compliance, audit, HR, management?
Here it is relevant whether special know-how is required for the topics under investigation, as well as who is the focus of the investigation. It may make sense to bring in external advisors for support. For example, lawyers can prepare employee interviews, be present at them or lead them. Forensic examination of technical devices usually requires professional assistance, which at the same time keeps an eye on data protection and usability. It is essential that a decision on responsibility is made and roles are clearly assigned.
The conduct of internal investigations can trigger works council participation rights, ranging from the right to information to the right to consent. For this to be the case, there must be a collective issue, which is more likely to be the case if the subject of the investigation is behavioural rather than purely work-related issues, and the more employees are affected. This must be assessed on a case-by-case basis.
Employee interviews are obvious investigative measures. Before a first interview, it is important to determine who should be interviewed as well as who should not be interviewed (initially). A defined order is almost always useful. A catalogue of questions and a roadmap for conducting the interviews should be worked out in advance.
The interviewer is of particular importance in staff interviews. Tactics and appropriate sensitivity in interviews can significantly influence the process and the findings. It is unwise to assume that the organisation’s own employees will turn out to be talented interrogators. For in-house interviewers, the situation can be uncomfortable, especially when the investigation relates to sensitive issues such as allegations of sexual harassment. With this in mind, it is important to give serious consideration to the decision on who will conduct the interview.
Internal investigations can be an unfamiliar and resource-heavy process. Good planning and a structured approach are the keys to success. Mistakes can affect the quality of results and their legal usability. Successfully conducted investigations, on the other hand, provide a strong basis for dealing with problems that are uncovered.