A concern has been raised to the HR hotline. An employee reports that her manager has been bullying her. She alleges that he has been repeatedly rude to her in team meetings, talking over to her and down to her. She feels belittled and she thinks this may be happening because she is the only woman in the team. She would like this matter to be investigated and then her manager to be dismissed.
“What’s new?”, you might be thinking. Sadly, this is the sort of complaint that employment lawyers and HR practitioners come across all the time. But in this example, the UK employee works in the organisation’s Global Sales Team and her manager is based in Germany. The Sales team are scattered across all continents and those team meetings take place on Teams.
In highly-matrixed multi-nationals with cross-functional teams working across countries and regions, this is not an unusual scenario. A global work environment has implications for investigation procedure, timelines, evidence gathering and the information that must be shared (or not) with parties involved. While there are some initial constraints (overt impartiality, necessary language skills, an understanding of what specifically is in issue with factually and legally, etc.), it gets more complicated very quickly. Careful planning is therefore essential.
Here are our top 5 key issues to consider before you commence the investigation:
- Where are the interested parties located?
The location of each individual involved in the process must be taken into account. Concern raisers and the subject(s) of and witnesses to their concerns may have differing rights and obligations governed by different local employment and privacy laws.
- Which procedure applies?
One crucial key early consideration is identifying whether the complaint raised needs to be handled in any specific manner. For example, if the concern qualifies as whistleblowing, a different investigative process may be prescribed by law, and possibly reporting obligations also.
Concerns about potential sexual harassment may also require a different process to be followed, either as a matter of local law or in light of the high potential for reputational damage, according to company policy.
Whatever the nature of the complaint, it is essential that all locally applicable employment handbooks, work rules and collective agreements are checked to ensure that any applicable procedural requirements are identified and complied with so far as practicable. Remember that these requirements may include that the investigation be conducted (or the outcome report provided) in a particular language, and varying degrees of separation between who funds the facts and who decides what to do about them once found.
- How long can the investigation continue for?
Another crucial early consideration is identifying any hard deadlines that may apply. Whilst local laws do not generally prescribe specific timeframes for conducting workplace investigations, it is common for them to impose hard deadlines for implementing any sanctions or employee dismissals in response to wrongdoing.
In Germany for example, where the dismissal is for “cause”, the notice of termination must be received by the employee within just two weeks of the employer becoming aware of the misconduct relied on. As an investigation progresses, deadlines in other jurisdictions may become relevant. In our example, if the evidence suggested that an employee in Spain was also involved in the wrongdoing, the statutory limitation periods for imposing sanctions in that country are also extremely tight: generally, 10 days for minor, 20 for serious, and 60 for very serious offences, counted from when the company becomes aware of the facts. The question of when a company can consider itself “aware of the facts” in each jurisdiction could be the subject of a whole blog series by itself).
- What about witnesses?
Witnesses to alleged harassment said to have taken place on Teams calls may be based in a number of different countries. The extent to which the employer can compel any of them to participate in its investigation will vary according to their location. In France, for example, witnesses are generally free to cooperate or not without sanction, whereas in the US, generally, company policies should provide that employees are required to participate in investigations and that failure to participate will result in disciplinary action, including termination of employment. In the UK a request to participate will usually be seen as a reasonable management step, but there may be circumstances in which the employee’s refusal is nonetheless reasonable too.
Questions often arise as to whether or not witnesses (or indeed concern raisers and the subjects of their concerns) are entitled to be given copies of their statements, whether they should be asked to sign these or even to give a statutory declaration. Often, local privacy laws will come into play and investigators will be required to conduct a careful balancing exercise between the rights of the subject, the concern raiser and other parties involved in the process. Ensuring the right balance is reached and the correct formalities are adhered to in relation to evidence is essential, as in some jurisdictions procedural breaches may impact on an employer’s ability to sanction a wrong-doer or to successfully defend any claims arising out of the issues raised.
- And finally…
In addition to taking account of all applicable local laws, investigators must also carefully account for varying local social and cultural norms. While most global employers will promote a single set of “core values” or principles for the global workforce to adhere to, interpretation of how to enact those values and therefore local standards of behaviour will inevitably vary widely.
Setting and upholding consistent and coherent conduct requirements and calibrating investigation outcomes and sanctions across a global organisation, while also being sensitive to these local factors, is perhaps the hardest job of all for investigators.
We have recently launched new global investigations resources on Global Edge. Existing Global Edge subscribers can access these here. New users can request a demonstration or access for a free of charge trial period by contacting global.edge@squirepb.com.
