An anonymous whistle-blower reports sexual misconduct by the CEO and threatens to go to the media...
In the post-MeToo era, organisations face significant challenges when sensitive workplace allegations and details of the investigation are leaked. In a recent panel discussion ("Plugging Leaks: How to Deal with a PR Crisis") given at the International Employment Lawyer Workplace Investigation Masterclass, sponsored by Ankura and A&O Shearman, Ankura's Forensic expert, Charli Curran shared her experience and insights on the investigative aspects when a Public Relations (PR) crisis hits and how organisations manage this through the lens of the media.
Below is a helpful guide for undertaking crisis-led investigations based on the specific insights shared by Charli during the panel discussion.
Investigative Strategy & Approach
Organisations face further public scrutiny in how they conduct the investigation, as well as the nature of the allegations reported. If inadequately conducted, either because the findings are limited or if the investigation itself has caused harm to stakeholders involved, organisations are reputationally exposed. When devising your investigative strategy it is important to consider two factors; robustness of the investigation and managing reputation which can be achieved by considering the following:
- Applying forensic process is crucial in ensuring that the investigation is evidence-based and thorough to mitigate any reputational fallout or counterclaims.
- Independent and external investigators are necessary in crisis-led matters and should work in conjunction with external legal counsel and PR & Crisis Communication experts also engaged by the organisation. This integrated team ensures that legal risks and communication strategies are considered to manage the organisation's reputation throughout the investigative process.
- Managing stakeholders engaging with the investigative process is vital to ensure expectations of complainants, witnesses, and subjects are clearly managed. When people are kept informed, even if information is limited to a high level of detail, there is less risk of information being leaked to media and/or social media platforms.
- Statements limited to the process and progress of the investigation should be planned from the outset, working with PR advisors and demonstrating that the organisation is taking the allegations seriously.
- At certain points of the investigation, there may also be a need to share findings to demonstrate a level of transparency. Once you release information, you cannot take it back so this should only be considered at a stage when the investigation has drawn definitive conclusions and kept at a high level to maintain confidentiality.
- The threat of publicity should not alter your investigative approach, particularly for workplace matters involving harassment and abuse allegations. From a victimology perspective, these cases differ considerably from financial misconduct matters which are often perceived by most as victimless crimes. For example, fraudsters may view their actions as harming a company rather than individuals, overlooking the personal impact. In contrast, harassment and abuse is a direct psychological, sexual, and/or physical harm to the individual it is aimed at and therefore, invokes an emotive response.
- To establish the position of the organisation's governance in handling sensitive workplace complaints, it is advisable to review how and when disclosures were made against the subject(s), particularly where they involve senior leaders. This will help the organisation identify any potential governance failures which could also be publicised.
- Confidentiality and disclosures should be signposted at every point of the investigation to minimise further leaks.
- It is also advisable to implement temporary reporting channels for investigators to access additional witnesses and/or victims in public harassment cases. It is common in these cases for others to come forward once allegations have been made public. These disclosures still need to be assessed and appropriately triaged for credibility but will be a useful channel to inform investigators of any potential systemic issues the company may be exposed to. Implementing such channels can also deter employees from discussing the allegations and/or investigations on social media forums.
Investigation Outcomes & Recommendations
- The outcome of the investigation should be shared internally, again at a high level to manage confidential and sensitive information. This is an effective way to demonstrate the organisation's commitment to investigating harassment and abuse matters in the workplace and provides a degree of transparency to promote a speak-up culture.
- Observations identified from the investigation relating to process and governance (i.e., how initial disclosures were responded to), should be considered to test existing processes and check they are fit for purpose.
- Management of stakeholders, including at the conclusion of the investigation (for example, communicating timelines as to when certain aspects of the reporting phase are planned), will further help manage expectations and reduce the risk of further leaks and counterclaims.
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.
