Dutch Whistleblowers Authority publishes Brochure 'Internal Investigation' - Useful Guide for Practice

Employers will sooner or later face reports of suspected misconduct or integrity violations. Such reports may prompt employers to conduct internal investigations. Based on these investigations, (employment law) measures can be taken, among other things. The Dutch Whistleblowers Authority (hereinafter: the Authority) has published a brochure on what is needed to organize an internal investigation and how employers can prepare for it. The brochure addresses the assessment of the report, the internal investigation itself, and its conclusion. It covers both integrity violations and misconduct involving a public interest (i.e., reports to which the Whistleblower Protection Act applies).

For practice, the brochure is a valuable guide with useful tips and tricks. Below, we outline the key components. The full brochure is available. 

Preparation

Due to the nature of a report, an employer may sometimes need to act immediately. Therefore, it is crucial to be prepared for conducting an internal investigation. Given the potentially far-reaching consequences of an investigation, the parties involved must be able to trust that it will be conducted carefully. To ensure this, it is important to establish an investigation protocol. This is a key part of the preparation. It clarifies who should take which steps and when. It also specifies who makes what kind of decisions. Not using an investigation protocol can lead to (legal) uncertainty for those involved and to poorly thought-out choices.

Several officials are involved in a report:

• The Integrity Coordinator/Manager or Compliance Officer coordinates, directs, and oversees the entire integrity policy.
• The Confidential Advisor has the task of informing a reporter of (a suspicion of) an integrity violation about the reporting process and providing confidential advice on the steps to be taken.
• The HR Experts and Legal Advisors advise the employer on any measures following a report and/or internal investigation.
• The Employer's Management is ultimately responsible for handling a report. It is also the management that decides whether an internal investigation is appropriate.

Investigations are conducted confidentially and in accordance with the "need to know" principle. This means that the collection and sharing of information are limited to what is necessary to achieve the objectives of the investigation. This means that investigators involve as few people as possible in the investigation and only give those people access to the information they need to fulfill their role in the investigation.

A tip from the Authority is not to promise reporters, witnesses, or accused persons that their identity will never be disclosed. During or after the internal investigation, situations may arise where this will be the case. For example, if legal proceedings are initiated and the investigation report and underlying documents are involved in the decision-making process.

Assessment of the report

The employer makes an initial assessment of the report based on the information from the reporter. This can be done using the following questions:

• Which issue has been brought to attention?
• Is this issue being addressed or investigated elsewhere?
• Which solution direction is the most suitable?

In analyzing the report, other signals can also be taken into account, such as an inexplicably high absenteeism rate or high staff turnover in a specific department. These can be signs that something is wrong.

An internal investigation is, in most cases, significant for all involved. Therefore, employers should also explore whether other, less intrusive solutions or forms of follow-up are possible, such as having a conversation between the parties involved and the manager or mediation.

Starting a fact-finding investigation

At the start of a fact-finding investigation, it is important to first assess the risk that the required information may not (or no longer) be available when needed. The required data must be secured as quickly as possible.

Another question that arises is whether the accused can continue to work in their current position or workplace during the investigation. As an employer, it may be wise in some cases to take an order measure. For example, if the suspected integrity violation continues, the damage increases, or there is a risk of recurrence as long as the accused retains their position. Or if there is a risk that the person involved will disrupt the fact-finding investigation, for example, by influencing witnesses or destroying evidence. Depending on the circumstances, the employer may consider a (paid) suspension or transfer.

Internal and external communication about (the initiation of) a fact-finding investigation requires care. As an employer, you should think about this in advance. The media may also become aware at some point. The Authority provides practical points of attention for communication in the brochure.

Conducting the fact-finding investigation

An internal fact-finding investigation starts with a written assignment from the employer to the investigators. The investigation assignment should address, among other things, the reason and purpose of the investigation, the research questions, the investigation protocol to be followed, the available research methods, and the required capacity and expertise.

Regarding the choice of investigators, it is important that they can work as independently as possible. This means that they can determine for themselves, without interference, which facts can and cannot be established. The investigators can be employees of the employer (internal investigators) but can also be hired (external investigators). With internal investigators, there is a risk that the investigation role conflicts with their regular function. To mitigate this risk, sufficient distance must be ensured between this internal investigator and the alleged integrity violation. According to the Authority, the manager of the reporter or accused should not conduct the fact-finding investigation. Also, the HR employee involved in imposing an order or employment law measure should not fulfill an investigation role. When appointing external investigators, it is important to note that a permit is required for companies conducting person-oriented investigations. The list of permit holders can be found on the Justis website.

Important points of attention in conducting a fact-finding investigation include that (i) the normative framework to be tested must be clearly stated, (ii) the fact-finding investigation must be proportional and subsidiary, and (iii) the right to be heard must be observed. Investigators can use various research methods. These must be specified in the investigation protocol.

Conclusion of the fact-finding investigation

The research is concluded with a research report. The research report contains at least:

• The research assignment; 
• The framework against which It was assessed; 
• The description and justification of the research methods used; 
• The factual narrative; 
• The underlying documents (such as interview reports and documents); 
• The findings, the analysis, and the conclusion based on the research.

After the investigators deliver the report with the results of the fact-finding investigation, it is up to the employer's management to make a judgment on it. The legal advisor and HR advisor can advise the organization on both the judgment and any measures.