Asia Disputes Academy

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1 Asia Disputes Academy Investigating the facts conducting employee interviews Winnie Chung and Laura Chapman 18 September 2014

2 Introduction Investigation To try to find out the facts and identify the supporting evidence, to learn about what happened, how it happened, where, when, and who was involved 1

3 Introduction Evidence Identify where and in what form? Preserve protect Evaluate source, reliability, strength Present interpret, report 2

4 Introduction The investigative process Before During After 3

5 Introduction What we ll cover Preparing for the investigation - Identifying the subjects / targets and the investigative team - Identifying and addressing legal (including contractual) obligations - specific issues to consider Conducting investigative interviews - Preliminaries - Interviewing techniques Following up and reaching an outcome - Considering evidence and identifying follow up needed - Disciplinary processes - Interaction between disciplinary and regulatory processes 4

6 Introduction What we ll cover Preparing for the investigation - Identifying the subjects / targets and the investigative team - Identifying and addressing legal (including contractual) obligations - specific issues to consider Conducting investigative interviews - Preliminaries - Interviewing techniques Following up and reaching an outcome - Considering evidence and identifying follow up needed - Disciplinary processes - Interaction between disciplinary and regulatory processes 5

7 Case Study A reminder You are Dragon Electric Limited (DEL) The CEO of JVCo, Henry Wong has recently left to start a competing business and appears to have taken four key staff members with him. DEL strongly suspects data has been misappropriated and that IP has been taken for use in the new company There is evidence to suggest that a Senior Technician who is still employed by JVCo was involved with the process but it is unclear what her involvement may have been 6

8 Preparing to investigate (1) Who should be involved? What is/are the specific issues(s) that you have been asked to investigate? Who are the parties under the spotlight and who need to be interviewed? Which departments need to be involved (e.g. compliance, legal, HR)? Who is the appropriate investigator? - Conflicts of interest - What are the potential liabilities Who should be in the interview? Is external support necessary? 7

9 Preparing to investigate (2) What obligations/restrictions are there? Is there an external party involved? If so, what are your obligations as to: - the control / spread of information - documentation / evidence - the timing of the investigation - the people involved in the investigation? Does an employee have any statutory rights which will affect the investigation? For example: - the right to representation/to be accompanied to interviews - a right against self-incrimination Does the employee have any contractual rights (e.g. decisions to be made by the board) Is there an internal policy/guideline that deals with investigations? 8

10 Preparing to investigate (3) Whistleblowers Employees who raise the alarm about suspected wrongdoing In some jurisdictions they have special protection but this may depend on the nature of the wrongdoing and the manner in which they blow the whistle. Usually have to consider carefully how to handle the whistle-blower keep them informed where possible Do whistle-blowers have specific protection in your jurisdiction/under your policies? Even if there is no specific protection, consider the potential PR issues 9

11 Preparing to investigate (4) Suspension of employees Is suspension really necessary? - does the employee need to be out of the office? - is a lesser step sufficient e.g. restricted access to IT systems? Usual legal starting point is the employment contract is there a contractual right to suspend? If not, does the law in your jurisdiction allow you to suspend? Any regulatory notifications required if an employee is suspended? How will the client respond to internal and external questions about the employee s absence? 10

12 Preparing to investigate (5) Data privacy - issues for investigations Many recent changes to data privacy law across the Asia region Data privacy regulations (and related regulations) impose important constraints on investigations in relation to employee data including on: - collecting data for the investigation - monitoring employees - disclosing data to third parties (e.g. a regulator). Most data privacy laws have exemptions, but the wording must be looked at carefully A good policy and having obtained appropriate consents is advance is key 11

13 Preparing to investigate (6) Data privacy employee monitoring When considering employee monitoring, it is important to remember the four Cs: - Clarity: employee monitoring policies must clearly specify the purposes served by employee monitoring, when monitoring may take place, the personal data that may be collected and the purpose for which data may be used - Communication: the employer must make employees aware of the nature of the monitoring in advance of undertaking it - Control: Data collected in monitoring can only be used by the employer for a purpose stated in its policy or for a directly related purpose and employers must keep strict control over data to ensure this is complied with - Consent: in a number of jurisdictions, employers are required to obtain consent from employees before undertaking any monitoring (e.g. South Korea, Singapore, Hong Kong) 12

14 Preparing to investigate (7) Data privacy employee monitoring For each specific monitoring exercise, consider the three As: - Assessment: must consider the risks and benefits of the monitoring to make sure that the monitoring will be reasonable and fair. This should involve carrying out an impact assessment - Alternatives: can the employer do anything else that will be equally effective yet less intrusive to privacy? Monitoring should always be overt unless covert monitoring is absolutely necessary - Accountability: Employer must be responsible for the management of data once collected to make sure it is secure and their practices are compliant with the PD(P)A 13

15 Preparing to investigate (8) A few words on preserving privilege First, does it apply? - Privilege in common law jurisdictions, e.g., Hong Kong, Australia, Singapore - Confidentiality in civil law jurisdictions, e.g., China and Japan Beware of variations in forms of privilege across the region: e.g. in India, privilege not always absolute some authorities may still access privileged information. When taking interview notes, record observations of witness/evidence and do not agree to release the notes Check for unauthorised recording! Limit the client group that receives information: Three Rivers (No 5) for a corporation, client refers to only the employee team who is charged with communicating with the lawyers 14

16 Preparing to investigate (9) Legal privilege - cross border issues Cross border disclosure requirements will depend on: the jurisdictional reach of the empowering Ordinance/law whether the documents are held by the entity named in the warrant/notice or held by some other third parties or affiliated entities whether privilege concept exists under the foreign law jurisdiction cross border cooperation between law enforcement agencies / securities regulators 15

17 Conducting the interviews (1) Preliminaries Carefully consider the timing of the interview/the order in which you interview employees What information should you give the employee in advance (if any)? How much notice should you give the employee of the interview? Consider asking the employee to sign a confidentiality undertaking that he/she and his/her lawyers will not disclose any information they obtained from the interview to third parties Be prepared to present evidence /documents to refresh the employee s memory at the interview if necessary 16

18 Conducting the interviews (2) Preliminaries cont Where lawyers are the interviewers, maintain privilege (if relevant) by clearly warning the employee that: - Lawyers acting for the company not the employee - Interview is confidential for the purpose of advising the company and is privileged - Privilege belongs to the company and not the employee and the company may disclose the contents of the interview to a third party (known as the Upjohn warning) Record in your notes that the warning is administered. Inform the employee what the information gained during the interview will be used for Confirm (if possible) that the interview is not a disciplinary interview but that information from the interview may be used in later disciplinary proceedings. 17

19 Conducting the interviews (3) Legal issues Typical approach for regulatory investigations: - lawyers often carry out the interviews - don t usually share the notes or transcripts (if meeting is recorded) - don t usually allow the employee to be accompanied - clarify that this is not a disciplinary step (do not commit to whether disciplinary action will be taken later) - employee can usually be asked to cooperate as part of general duties to the employer, but difficult if they will incriminate themselves What considerations apply in the relevant jurisdiction? 1. Can employees be required to cooperate with interviews? 2. What formalities must be observed for employee interviews? 3. Can information gained during interviews be used for a later disciplinary process? 18

20 Conducting the interviews (4) Questioning techniques general rules Begin with open-ended questions, then transition to more detailed, specific questions Ask questions that require events be stated chronologically. This allows the investigator to compare different versions of the story Avoid asking tough questions first; start with simpler questions to put the interviewee at ease Ask one question at a time and do not move on to the next question until you have all the information needed. Do not interrupt. Ask for specific examples Use summarisation as a tool Remain neutral; don t formulate an opinion before all the facts have been gathered 19

21 Conducting the interviews (5) Questioning techniques general rules cont Although you should plan your questions in advance, additional questions may arise based on the information you gather. Don t limit yourself to the planned questions; ask follow-up questions to clarify Ask if there are other witnesses who might be able to assist Document all responses Consider summarising the interview with the interviewee and have them confirm that it is accurate. Document the response to the confirmation question Instruct the interviewee to provide any additional information that may not have been covered If the employee is being evasive, be persistent and try to ask a question in different ways to seek to obtain a clear answer from the employee Remind the interviewee that all information should be kept confidential 20

22 Conducting the interviews (6) Observing body language Often, the interviewer s impressions of the interviewee can be helpful in determining the value of their evidence. Specific things to consider include: - General demeanor and behaviour: does the person come across as defensive, hostile, uneasy, nervous, open? - The answer itself: does the interviewee s response answer the question directly or is it evasive or off topic? Repeat question if necessary - The timing of the answer: is it given quickly or does it require some prompting - Eye contact: is the interviewee making eye contact when they respond? Where possible, note down your impressions of the overall demeanor of the interviewee but avoid making specific judgments about whether or not the answers are truthful 21

23 Conducting the interviews (7) Cultural considerations Hierarchy issues: - employees may be very reluctant to place any blame or responsibility on their superiors and sometimes even peers - the identity of the investigators needs to be carefully considered in relation to the seniority of the people who are being investigated or will be involved in the investigation Be careful of the questions you ask: - Make sure to ask a mix of open and closed questions employees may only answer the exact question that is asked of them - If an employee doesn t know the answer to a question they may lose face. Employees may give an answer which they think is correct but which they may not have any actual knowledge about and/or may give an answer that does not directly answer the question asked Direct v indirect approach: - A direct approach can often cause offence so it is important to structure questions with this in mind 22

24 Conducting the interviews (8) Other considerations Extra steps may have to be taken to accommodate the employee if: - they are vulnerable e.g. if they have a medical condition or other characteristic that may make them sensitive to stress - the issue under investigation is a sensitive one e.g. sexual harassment Steps that can be taken are: - Offering regular breaks - Using break out rooms - Conducting the interview away from work premises/at the employee s home - Having a companion present - Ensuring the appropriate people are interviewing 23

25 Following up and reaching an outcome (1) Concluding the investigation Once all interviews are complete consider: - Is any follow up investigation is required in order to make a finding? - How should the findings be presented - Who needs to be informed of the findings? - What (if any) steps should be taken as a result of the findings? - Who should be involved in the next steps? - What is the process for progressing the next steps? 24

26 Following up and reaching an outcome (2) Considering disciplinary action When is the right time to start a disciplinary process? - consider whether the employee is needed for further interviews / assisting regulatory processes - are there any time limits for carrying out a disciplinary process? Should generally treat a disciplinary process as separate from any earlier interviews (although information gained during interviews may be put to the employee) What evidence is required to support allegations? Can it be disclosed? What disciplinary action is appropriate? Consider whether the disciplinary process might create unhelpful documents Is it better to take employment risk than jeopardise the wider process? 25

27 Following up and reaching an outcome (3) Regulatory v employee issues Regulatory issues typically take precedence over employment law considerations Try to balance the two sets of issues if possible Do regulators need to be informed? Beware of creating damaging documents during any disciplinary process that might need to be disclosed to the regulator Preserving privilege (if concept exists in relevant jurisdiction) and avoiding creation of damaging documents may mean an effective disciplinary process cannot be carried out: - may need to dismiss without presenting full evidence to the employee - may miss time limits for disciplinary action because continued cooperation by the employee is required - Be aware of the employment risk (damages, reinstatement, inability to dismiss) 26

28 Questions? This material is for general information only and is not intended to provide legal advice. Freshfields Bruckhaus Deringer 2014

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