Best Practices in HR Internal Investigations

This article is produced by CMS Holborn Asia, a Formal Law Alliance between CMS Singapore and Holborn Law LLC.

Whistleblower series: Singapore

The months of March, April and May 2020 have seen most businesses in Singapore adopting remote-working or telecommuting as the “new normal”. While the Singapore government recently announced that “circuit breaker” measures in the country end on 2 June 2020, the Ministry of Manpower has emphasised that employees should continuing working from home even after that date for the foreseeable future.

Even with such a large number of employees working remotely, employers continue to be exposed to the risks of misconduct in the workplace. We take a brief look at two common scenarios requiring internal investigations – workplace harassment and “whistleblower” complaints – and examine some of the best practices your organisation can adopt when conducting an internal investigation.

Workplace harassment

Workplace harassment has come to the forefront of most employers’ minds in light of the global #MeToo movement, which has highlighted the prevalence of sexual harassment in the workplace and led to the fall from grace of many senior and top management executives found guilty of unprofessional conduct.

A recent study conducted in 2019 saw Singapore ranked in the second-lowest spot out of 14 countries for workplace inclusivity with 24% of workers reporting being bullied during the previous year. The survey was aimed at helping organisations understand where greater effort should be made to make workplaces more inclusive and equal.

Workplace harassment can occur in different forms and in different degrees. Broadly speaking, workplace harassment occurs when one party in the workplace demonstrates behaviour that causes or is likely to cause harassment, alarm or distress to another party. Such behaviour can violate a person’s dignity or create an unfavourable work environment, posing a risk to the person’s safety, health and well-being.

Workplace harassment can take place through different modes of communications, such as email, text messaging or social media. As such, even if employees continue to work from home, they remain susceptible to workplace harassment, albeit remotely. It is not uncommon for workplace harassment to occur outside of the office space, such as on business trips, company-organised events, client premises or during other work-related occasions.

The Ministry of Manpower (MOM) in Singapore has provided examples of behaviour that may be considered harassment, which include (but are not limited to) the following:

• Threatening, abusive, or insulting language, comments or other non-verbal gestures;
• Cyber bullying;
• Sexual harassment; and
• Stalking.

Harassment in and outside the workplace is an offence under the Protection from Harassment Act (POHA). POHA protects individuals from harassment and related anti-social behaviour through criminal sanctions, and also provides a range of self-help measures and civil remedies for victims of harassment.

Whistleblowing

Over the past few years, the spotlight has been shone on whistleblowing in Singapore with scandals rocking major industry players implicated in corruption and graft worth billions of dollars. Such cases raise important questions about whether whistleblower complaints are being properly dealt with in a country otherwise regarded as largely corruption-free.

Whistleblowing refers to an act where an employee exposes information on wrongdoing and misconduct to his employer. This misconduct can range from financial malfeasance or corruption to regulatory non-compliance, such as non-compliance with MOM regulations aimed at curtailing the spread of COVID-19 transmission in the workplace.

On a general level, Singapore law does not impose any statutory or regulatory requirements on how a whistleblower’s complaint is to be assessed. Nor does it provide protections for whistleblowers. However, in the specific context of a complaint dealing with anti-bribery or corruption, the Prevention of Corruption Act provides that no complaints regarding a corruption offence can be admitted as evidence in any civil or criminal proceedings and no witness to any civil or criminal proceedings will be obliged or permitted to disclose the name or address of any informant or state any matter, which may lead to the informant’s discovery.

Employer Do’s and Don’ts during internal investigations

Do’s

One of the key things an employer should do is to have a written internal investigation plan that sets out clearly and concisely what needs to be done in the event of an internal investigation. The investigation plan should be easily accessible to the staff who will be conducting investigations.

The sections of the investigation plan to be adopted in a particular situation will largely depend on the specific facts of a case. However, some common steps include data collection, evidence preservation, document review, compliance with internal protocols relating to investigations, coordination with external service providers, communication with law enforcement agencies, witness interviews and taking statements.

During the data-collection and evidence-preservation process, it is important to consider data privacy and banking secrecy laws in jurisdictions where documents may be located. This can impact whether the documents and their contents can be transferred between countries. It is also important to consider whether dealing with documents stored in other jurisdictions will have any impact on ongoing or potential investigations by local law enforcement agencies in those jurisdictions.

Email correspondence and messages exchanged on instant messaging platforms are increasingly regarded as key types of documentary evidence for internal investigations. As investigations may involve allegations of false or manipulated documentation, it is important to retain "soft" or digital copies of relevant documents so that metadata information and properties can be examined.

Don’ts

One common pitfall that employers may commit in the rush to conclude an investigation is to conduct an inquiry without transparency and then terminate an employee based solely on the findings of such an internal investigation. Even though the statutes and regulations in Singapore do not prescribe a fixed procedure for internal investigations, MOM has advised that as a general guide the following principles should be adopted:

• Firstly, the employee under investigation should be told of his alleged misconduct.
• Secondly, the employee should be given the opportunity to present his case.
• Thirdly, the person or persons hearing the inquiry should not be in a position, which suggests bias.

Another common pitfall relates to informal record-keeping. The more informal the process of an inquiry, the more likely it will be that the local courts will decide that a “due inquiry” has not been undertaken.

Some of the things that a prudent employer could do include:

• keep contemporaneous written records of the investigation, including witness statements that should be signed by an employee after an interview; and
• ensure that a letter of termination (if it comes to that) clearly states all the reasons for the employee’s dismissal and also that a formal inquiry had been undertaken by the organisation.

Matters that employees should note during internal investigations

Employees should carefully review internal policies and guidelines and the terms of their employment contract to fully understand their rights and obligations. While Singapore law doesn’t impose specific obligations on an employee to cooperate with an internal investigation, depending on the terms of their employment contract his non-participation may amount to a disciplinary breach, which could potentially provide grounds for termination.

Employees should note that while there is no legal obligation for an employer to arrange for an employee to have legal representation during an investigation interview, an employee should not be prevented from seeking legal advice before signing off on any statements or agreements.

Best practices for organisations

The following are some (non-exhaustive) best practices organisations can consider adopting:

• Employers should develop formal policies, which prohibit harassment and encourage whistleblowing if they are not already in place. These policies should, among other things, ensure recourse in the case of harassment and ensure confidentiality and protection in the case of whistleblowing.
• An organisation’s policies should take into account the actual situation on the ground. It is recommended that organisations develop their policies in consultation with a committee of employees and their trade union (if any).
• Harassment prevention and whistleblowing policies are key corporate governance documents, which should be communicated clearly to all levels of the organisation. The management of an organisation should discuss and reinforce these messages regularly at staff meetings or training sessions to demonstrate its commitment to upholding these policies.
• Employers should create a safe environment for reporting and ensure that whistleblowers or those suffering from workplace harassment will not be penalized by, for example:
  • Creating multiple reporting channels, which can include a higher authority or a neutral party within the organisation if the harasser or subject of the whistleblowing complaint happens to be the victim’s immediate supervisor or manager; and
  • Setting up anonymous whistleblowing mechanisms, which will allow employees to report grievances without being identified, such as external hotlines as an additional channel for employees to make reports.
• Organisations should ensure transparency throughout the process of the investigation (e.g. regarding timelines, updates on progress, providing an avenue for appeal) until the closure of each case. Proper closure of a harassment incident or whistleblower complaint can help prevent recurrence. It is particularly important to ensure that the parties investigated do not repeat the misconduct if they continue to work in the organisation.

For more information on conducting internal investigations in Singapore, contact your regular CMS advisor or local CMS experts.