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In the last blog in this series, I gave some intake tips for communicating with whistleblowers. In this blog, I write about how to approach whistleblower investigations.
The difficulty in conducting these investigations is that there is often very little information to go on. While some whistleblowers may provide a lot of information and actively participate in the case, many others are not involved at all, beyond reporting the wrongdoing. Often, the quality of the information that whistleblowers provide is lacking, perhaps because they are afraid that the information that they provide will give away their identity.
The first step is obviously to try to obtain more information from the whistleblower. If this is unsuccessful, then a decision needs to be made about whether the investigation can go forward. In deciding this, the following can be considered:
- Is there enough information to determine what the allegations are?
- If true, do the allegations reveal potential wrongdoing under the organization’s whistleblower policy?
- Can the matter be investigated while maintaining confidentiality?
The last point is the one that I want to address. It can be the case that whistleblowers give too little information to identify witnesses or other potentially relevant evidence. The risk of starting an investigation in such a case is that the net will be cast too widely, damaging the reputation of the person who is identified as the wrongdoer (the “respondent”) in the process.
This is where a “staged” approach is useful. By this, I mean that the investigator can plan to obtain evidence in small increments, and, after each increment, a decision can be made about whether to continue the investigation. Normally, it is prudent to begin by obtaining evidence which is low risk. There is usually some “behind the scenes” evidence that can be collected. As an in-house investigator, this is where having good relationships with those in a support function can be helpful (for example, the internal audit team that has access to financial records). In some matters, it may also be possible to interview witnesses without revealing what the matter is about or risking them knowing who the target of the investigation is.
This type of staged approach requires that the investigator have a good investigation plan in place. I find that this is where whistleblowing investigations generally differ from the more traditional workplace investigations (e.g., harassment investigations). The path forward in harassment investigations tends to be more straightforward: each of the parties typically give evidence which helps the investigator identify witnesses and potentially relevant documents. In whistleblowing investigations, the investigator will have to think carefully about where to get evidence and how to manage the collection of documentary evidence (it’s not unusual to have to collect hundreds or even thousands of documents). I like to have a plan at the beginning and to revise it as the investigation moves along.
The plan will have to consider when to notify the respondent of the investigation. It will depend on the circumstances of the case. If gathering evidence confidentially behind the scenes, or in a staged approach, then it may be possible to hold off a little before notifying the respondent. This is because, if a decision is made to discontinue the investigation (usually when there is insufficient evidence to go forward), it avoids a situation where the respondent was told unnecessarily of the investigation. Keep in mind, however, that the respondent should always be told of the investigation before they are interviewed (and preferably much earlier than that). In cases involving more serious allegations, or where the respondent will need to locate documents before they are interviewed, it’s prudent to give them a lot of notice. They should also be given the allegations in writing, again, preferably long before they are interviewed.
Finally, I want to address confidentiality during the investigation process. This is an issue that comes up a lot. The concern may be that a matter cannot be fairly investigated without disclosing the name of the whistleblower to the respondent. This can be true if the allegations relate to something that the respondent did to the whistleblower (e.g., harassment, discrimination). First, a good whistleblower policy should state that confidentiality is not absolute. Second, it is usually clear at the beginning of a case when the identity of the whistleblower will need to be disclosed to the respondent (again, usually when it is alleged that the respondent did something to the whistleblower). At the intake stage, there can be a discussion about this with the whistleblower to make sure that they still want to go forward with their report. There should be a discussion with the whistleblower anytime it’s contemplated that their identity will be revealed so that they are not surprised by this and to help them identify reprisal behaviour.
In summary, there is no “cookie cutter” approach for whistleblowing investigations. Each situation is unique and a careful consideration of the circumstances must be considered at each step of the investigation, while being careful to protect the whistleblower along the way.
This blog concludes my whistleblower series. I hope the information was helpful and that it demystified some of the work surrounding whistleblowing in the workplace.
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