Our experienced team comprising employment specialists Catherine Leung and Matthew Durham, along with disputes partner Kenix Yuen presented on "Conducting Internal Investigations with Confidence". During the session, they covered the life cycle of an internal investigation, highlighting the specific legal, logistical, strategic, and practical issues that in-house lawyers need to consider when dealing with allegations and complaints.
As a recap, here are a few key points we discussed:
- Investigation triggers – There are multiple issues and scenarios which can lead to allegations and complaints which trigger an investigation. These may involve financial fraud, anti-bribery and corruption, sexual harassment, health and safety and many other kinds of misconduct or regulatory breach. The information may also come from a variety of sources, including direct complaints from internal or external sources, and whistleblowing hotlines or emails. The clarity and detail of information provided is often critical and language may be an issue. Consider how to persuade anonymous whistleblowers to come forward and check that whistleblowing mechanisms allow for reporting in different languages.
- Plan and lead – There is no "one size fits all" with investigations. The instinct for reactivity needs to be balanced with careful planning of how to conduct the specific investigation required. Getting the right investigation team is vital and considering whether external advisors are necessary at the outset. Generally a core team is best to maintain the integrity and confidentiality of the investigation, but input may still be required from across different sections of an organisation, including compliance and risk, legal, senior management, human resources, employee relations, finance, IT and security.
- Cross-border considerations– For multinational companies, an investigation undertaken in one location may have a nexus with a number of other legal jurisdictions. For example, it is important to consider: how an investigation conducted in one location may be affected by the attitude of regulatory authorities in another jurisdiction; whether legal privilege will apply and be maintained across jurisdictions; and whether there are any restrictions on the cross-border transfer of information (which has particular relevance to matters involving mainland China).
- Collecting evidence– So much communication and business in mainland China is conducted on the WeChat platform. It can be extremely difficult for employers to obtain evidence from personal devices of employees. Companies should consider their policies on the use of personal devices and whether employees should be required to use company-issued devices for business communications.
- Interviews and recording – In theory the parties should agree to any recording of an interview. It is common in practice, however, for employees to make secret recordings, on a mobile phone for example. Such secret recordings nevertheless may be admissible as evidence in any proceedings. You should assume that you are being recorded and interact as if already in front of a judge.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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