March 12, 2018

Workplace Integrity and Crisis Response Initiative


2017 saw changes in attitudes towards reporting workplace misconduct. The shifts that occurred were precipitated by a workforce that has come to expect that corporates behave in a fundamentally ethical fashion. Challenges have been and are faced by individuals, businesses, and organisations in a number of industries, including  the media, technology, charity, sports, and professional and financial services. Whilst developments have accelerated in recent months, the changes they have brought merely represent new elements in an ongoing, longer-term readjustment of the relationship between businesses on the one hand, and the individuals with whom they interact on the other.  

The philosophies determining current ways of working were not designed to operate in such a world. In the prevailing climate, businesses must take a holistic view of the matters which their employees and stakeholders may report to them, adopting policies and procedures which treat such issues as ethical, legal, and reputational questions. Furthermore, regulators, now more than ever, when investigating any allegations of impropriety, will always examine the conduct of the corporate as a first step, to ensure that they have responded to accusations in a responsible and independent manner. Businesses and organisations must therefore implement significant reforms in order to become morally, ethically, and legally compliant.

A business' or organisation's policies and procedures dictate the character of its interactions with staff, stakeholders and members. They must exist to protect not only the company itself, but those with whom it deals and employs. If thoughtfully drafted to include robust checks and balances, reporting mechanisms, and the requirement for independent and objective oversight, policies and procedures, implemented by a dedicated, specialist team, can act as the cornerstone of creating an ethical and safe workplace.

To ensure policies and procedures are fit for purpose, organisations must conduct a thorough health-check of key documents and ensure they have implemented a comprehensive suite of rules, regulations, and procedures, tailored to the organisation, having regard to the specific risks inherent in the industry in which it operates, that will protect the appropriate individuals from emotional and physical harm.

Whilst well-implemented and well-thought-out policies and procedures are key to establishing a healthy and comfortable workplace, it is important to ensure that those documents, which will cover a wide range of topics and issues, are there to support or prevent and can be identified and understood. To ensure this, it is essential that organisations and businesses educate their employees and officers about the characteristics and legal treatment of various forms of unacceptable and potentially criminal or otherwise actionable conduct, such as: unconscious bias and discrimination, defamation, harassment, and sexual offences. This education should take place through bespoke, face-to-face training, where possible. Whilst e-learning programmes and standard form materials have a key role to play, they are no substitute for specialist workshops delivered by expert HR, Legal, and Compliance professionals. It is important to reinforce what behaviours are and are not acceptable and how, when the latter conduct is witnessed or experienced, it can be reported for appropriate remediation. Reporting should be encouraged, and it must be made clear that the rules apply from the most junior temporary worker to the most senior officer.

Whilst robust policies and procedures and frequent practical and tailored training will assist in ensuring that businesses both provide an ethical workplace and are good corporate citizens, it is inevitable that, on some occasions, inappropriate or potentially criminal conduct will occur. The reporting of such behaviour represents the time of greatest vulnerability for both businesses and individuals involved. Circumstances often require taking significant steps in a limited amount of time. Mistakes can expose organisations to litigation risk, so they must be proactive in managing the crisis to mitigate this and protect reputational damage. Whilst it should be the priority of the organisation to ensure reporting individuals are given the appropriate protection, the continued health of the corporate cannot and must not be ignored.   

A protocol with clear lines of escalation and protection for those bringing inappropriate conduct to an organisation's attention will ensure that reports of impropriety  are handled in an ordered, efficient, and risk-averse manner that protects the organisation and its reputation, whilst having regard for the needs of the relevant actors. The protocol should deal with a number of general subjects pertinent to any report, including: recording, escalation, document preservation, employee protection, and employment law considerations.

Following a report of alleged inappropriate behaviour, it is vital that a business carries out a thorough internal investigation that has impartiality, objectivity, and independence as its defining tenets. Investigations will require the collation and review of key material and interviews with the individuals directly and indirectly concerned in the events that make up the substance of the report, as well as those in the relevant management and corporate functions.

Should a report and internal investigation result in findings being made against an employee or the company itself, it is possible that the business may become involved in litigious proceedings and/or face reputational damage. Demonstrating to employees and stakeholders that an organisation is determined to genuinely resolve an issue, and do so in a manner which takes accounts of the needs of all those involved, is key to bringing matters to a mutually successful resolution.

© Arnold & Porter Kaye Scholer LLP 2018 All Rights Reserved. This Advisory is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.

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