7 Deadly Sins to Avoid When Conducting Internal Investigations
Interviews are the key part of evidence gathering process of internal investigations. While some internal investigations may center around already obtained material proof such as information and document records, mostly others are initiated upon some complaints or whistleblower reports which require in-depth research and proactive information gathering from other witnesses and potential suspects. Based on our experiences, we see that -even in well-planned investigations- many organizations may struggle while handling interviews. Generally, most of organizations have high expectations to obtain all the information they need all in once during the interviews they make. Due to their will to end the investigation with a concrete result as soon as possible, they conduct all interviews by asking the same questions one by one. Additionally, when the interviewers are internal personnel, they may get easily manipulated by the interviewee's objections and requests since they are already both too much involved in the organization, or they may fail to build up an objective ground where they convince the interviewee’s rights and privacy will be protected, therefore the interviews may end up with no result.
Therefore, as Cetinkaya’s ethics and compliance team, we wanted to dedicate this article solely to the interviews to highlight the do’s and don’ts of the interview process.
i. Know what you already have.
To review and understand what is already available is essential before planning the interview questions. What is available does not only constitute of the case-related information and evidences, but also the organization’s field of operations, activities, rules, procedures, and principles which must be well-known before the interview. Even though such questions may be asked to the interviewee as introductory questions, the interviewer must always have a better knowledge about these simple questions asked to the interviewee, and must understand and analyze the “appetite of the interviewee to explain and clarify even simple matters”. This part also includes being aware of the legal rules and regulations applied to the case, if any.
ii. Draft interview questions.
Once all the available information is gathered and understood, the interview questions must be drafted. Even though every interview has its own dynamic and the interviewee has a different role in the scope of the investigation, there are some particular questions that must be asked to all interviewees. Preparing a template would make it easier to shape the interview, as well as compare the answers given to the same questions. Nonetheless, information obtained from a prior interview may require adding a new question to the interview for the subsequent interviewees; or, may require conducting a second interview with the prior interviewee. Additionally, if the interviews are conducted by authorized external counsels, it is crucially advised to have the questions -both the exact and potential ones- confirmed by the internal investigation team beforehand.
iii. Provide the interviewer with a superior status quo before the interview.
How can you provide the interviewer with a superior position even before the interview? Setting the time and location is the simplest way to start dominating the interview. While choosing the right location where the interviewee can feel comfortable and safe to speak up is undeniably beneficial for witness interviews, being a decision-maker on the time and location provides a superior and powerful position to the interviewer against the interviewee and has a forcing effect on suspects, as well.
i. Clarify who you are, why you are here, and build up trust.
All interviews, regardless of whether the interviewee is the complainant, accused, or witness, should start with an introduction of the identity of the interviewer (if external); a brief and honest explanation of the reason for the interview; why the organization requires to investigate the case and which virtue is intended to be protected; and an honest and serious undertaking to protect the privacy and confidentiality of both the interview and the interviewee. The same commitment should be obtained from the interviewee as well.
We also find it beneficial to remark that, in the cases where the interviewer is an attorney, it is important to highlight that the attorney only represents the organization, and the interview does not enjoy the attorney-client privilege. This is actually the well-known standard applied in the U.S. as the “Upjohn” warning, which is a statement given to the employee who is interviewed, and states that the attorney represents only the organization and not the interviewee, and the organization preserves the right to waive privilege over the information obtained during the interview and may disclose that information to third parties, when necessary, at its sole discretion. As we mentioned, since there is no regulated standard for internal investigations in Türkiye, the practices are generated through comparative practices and with the guidance of external experts.
The interviewee must be provided with an opportunity to submit their questions about these introductory warnings at the beginning. The interviewer’s objective here must be to create an environment where the interviewee feels safe and comfortable to speak to open up a way to obtain as much information as possible.
ii. Ask background questions to prepare the interviewee.
Asking background questions usually helps to create a comfortable environment and a relaxed ground to motivate the interviewee to speak up and to gradually prepare him/her for the subject-matter-related questions. These questions may be “How long have you been working for the organization? What are your main duties and responsibilities under your role in the organization? Who do you report to?”.
Whereas these questions will prepare the interviewee for the core questions, his/her answers will help understanding the character, temperament, and attitude to shape the rest of the interview and determine the language that must be used by the interviewer.
iii. Ask questions that you already know the answer to.
This is an essential method to be followed in the next step while analyzing the credibility of the answers given in response to the questions related to the subject matter.
These may involve the questions regarding the information and details already obtained about the interviewee and the events that the interviewee has been involved in. The answers given to these already known questions will help to evaluate the credibility and reliability of the interviewee’s responses.
The language to be used, the attitude, and the way of shaping the interview differ with respect to whether the interviewee is the whistleblower, the accused, or a witness.
i. Interview with the Whistleblower
Interviewers should avoid expressing any predetermined conclusions about the subject of the report, or using a tone questioning the authenticity or underrating the cruciality of the complaint. The whistleblower should be convinced that the investigators take what he/she tells seriously, will go until the end to conclude the investigation, clarify the facts of the incident and take all the necessary actions including submitting the case to enforcement authorities if necessary. Showing the serious approach of the organization will also contribute to dissuading the whistleblower to lie and trick the interviewers. Generally, the whistleblowers are the first category to interview, but the unique circumstances of the case may require a change or a second interview with the whistleblower.
ii. Interview with the Accused
The most crucial point to consider while interviewing the accused is to avoid predeterminations and presumptions related to the incident and using an insulting attitude. The very-well known movie “12 Angry Man” should be accepted as the main principle while interviewing the accused without any prejudice. Whereas the accused should be informed that the interviewer solely represents the company, he/she also must be convinced that the interviewer is committed to being fair, unprejudiced, accurate, and honest, and to keeping the interview confidential. The main approach must be obtaining explanation and information in response to the complaints and evidence. Solely asking about the allegations and waiting for an explanation will result in only denial and objection. The questions should be followed with their grounding evidence; the body language and first reactions of the accused must be monitored. Do not forget that it is expected for someone to be defensive while reacting to allegations. The essential evidence is generally hidden behind conflicting answers. This is why we usually advise a second interview with the accused especially when new evidence is gathered.
The interview can proceed in an unforeseen way, and the interviewers may be provided with a load of conflicting information that they were not ever expecting. It is important not to stick to the questionnaire template, and to ask additional questions to obtain as much information as possible.
Highlighting the seriousness and consistency of the organization to reveal the facts and its zero-tolerance policy against anyone noncompliant is essential. Giving the impression that the organization is giving credit for cooperation may be advised to an extent that it should not cause the accused to believe that the investigation cannot be solved without his/her cooperation.
In the event that new evidence are obtained during the investigation, it is important to organize a second meeting with the accused to ask his/her opinion on the new evidence against him/her. Failing to take the defense of the accused related to the allegations against him may harm the integrity and legitimacy of the investigation at the later stage.
iii. Interview with the Witness
The witnesses to be interviewed should be priorly informed about the organization’s commitment to privacy and confidentiality, and to provide non-retaliation. The confidentiality of the interview also should be reminded to the witness. Different from the whistleblower, since the proactive action is taken by the organization side, the interview may create fear and anxiety in witnesses. Therefore, the background question method is an essential part to be followed especially in witness interviews.
Witnesses are generally the last category to interview since the interviews are generally based on what is “heard”. It may be beneficial and time-saving to classify the ones who witnessed the incident themselves as first-degree, and other witnesses as the second-degree.
Witnesses generally hesitate to share 100% of what they know. Therefore the interview questions should be supported with additional open-ended questions that witnesses may feel free to contribute, such as “why do you think that such an incident has occurred? Do you feel satisfied with the company’s compliance culture? Do you have any complaints related to your role, organizational structure, or the implementation of the compliance program? Do you have any advice to develop the company’s ethics and compliance culture?”
Interviewees are at the center of the interviews. Before diving into the question list, we highly recommend being prepared regarding the cultural and linguistic differences. Where are the witnesses from? Which language is their native language? Do we need a translator at present? According to the language of the interview, do we need the statement of the interviewee that he/she answers the questions in the language that he/she is capable enough to explain, which is a highly critical point, especially in the interviews of the accused employees. Otherwise, the accused employees may anytime reject their own statements -even though they sign the interview notes- and may assert that they were not capable to explain themselves since they were not answering in their native language, and may cause the Court to reject the accused employee’s statements as evidence.
Along with the language barrier, cultural differences should be considered. Does the culture of the interviewee allow her/him to feel psychologically safe in the interview room? If there is a cultural nuance, everything we do and say may be misinterpreted. This may increase the already existing pressure and distress and aggravate the interviewees’ hesitation to share what they know. On the other hand, such misinterpretation cases may also cause conflict and even be escalated to legal claims against interviewers. Whether the interviewee is from a more conservative and inclosed culture; whether he/she has religious barriers to talking about particular issues; or whether the interviewee is from a culture that is exposed to discrimination in the society and the interviewee does not believe the objectivity of the investigation, these issues should be considered before starting the interview. These factors may have an effect on the choice of interviewers, interview place, presence of a translator, etc.
We highly recommend the conduction of interviews with at least two interviewers, consisting of one person to ask the questions, and one person to take written notes of the answers given. If possible, the interviewer team can involve one more person to observe and note the body language, reactions, and mood shifts of the interviewee. The interview notes of the questions asked and answers given must be duly noted and given to the interviewee to read, approve and sign. As mentioned in the beginning, include a statement such as “the knowledge of the interviewee has been consulted for the internal investigation; the interview notes will be recorded in written and will be signed by the interviewee, and the interview notes may be evaluated and used for in the scope of the company’s internal investigation being conducted, and the interviewee consents for all the mentioned matters.”.
The interviews with the accused may be tough especially when the incident is related to a potential breach of human rights, such as sexual harassment or discrimination at work. We would like to point out that there is no regulation or rule regulating the interview procedures of organizations during an internal investigation. Therefore, each organization generates its own best practice internally or with the guidance of external experts.
Whereas there is no law regulating how the interviews must be conducted, there are other completing regulations to consider, such as employment law and data protection. Having full knowledge and practical experience of local laws and regulations, designing the internal investigation procedure of the company, and conducting all the steps of the internal investigation in compliance with this road map is crucial to preserve the legitimacy of the investigation, including the evidence gathered during the interviews.
Yes, we are still in the interview room, and the case is not even close to being reverted to a courthouse. However, especially before the interviews with the accused employees, legal representation is a frequently encountered request.
In accordance with the main principles of Turkish Labor Law, employees must make truthful statements to keep a trusting relationship with their employer, which can also include the obligation to cooperate and support. Generally, organizations also include such statements in their organizational principle and procedures. By interpretation, refusal by the employee to attend the interview without legal representation may be accepted as failing to cooperate with the employer. However, since also there is no regulation obliging the employers to accept such requests for legal representation, the final decision is generally at the company’s discretion.
Still, we cannot deny that the participation of the accused in interviews with their attorneys has an apparent damaging effect on the efficiency expected from a such interview. The interviewer loses their psychological power, the attorney intervenes in the questions asked and the answers given, generally requests amendments on the interview notes, and generally prevents the chance to observe the reactions and body language of the accused.
Even though it is not a relevant case with Türkiye, we would like to remark on an interesting decision of Ireland’s Supreme Court on the case of Barry McKelvey v Irish Rail, which focuses exactly on this issue. The McKelvey judgment which settles the position of employers facing an employee's request for legal representation during an internal disciplinary process enables them to refuse such request unless the sort of "exceptional circumstances" described in the judgment exist. Ireland’s Supreme Court decided that the ultimate issue is whether disciplinary proceedings continuing without legal representation would amount to unfair proceedings, rather than only potentially being of some possible advantage to the relevant employee; and found that the right to legal representation in disciplinary processes is an exception rather than the rule. These exceptional circumstances include:
The interview process is the most compelling part of internal investigations. This process requires practical knowledge and experience both in psychology, sociology, and a wide command of the legal side. Even in many well-planned investigations, the outcome may be a failure due to the wasted potential in interviews. As we’ve mentioned, there is no standard road map or a unique regulation for internal investigations, therefore it is crucial to avail yourself of an expert point of view to comply with other legal requirements, to benefit from previous experiences and comparative law practices, in order to handle internal investigations the best way possible.
McKelvey v Iarnród Éireann Irish Rail,  IESC 79, [S.C. No. 178 of 2018], Supreme Court appeal number: S:AP:IE:2018:000178 Court of Appeal record number 2017/394  IECA 346 High Court record number 2017/5121P