Managing investigations: how to avoid making a bad situation worse

Clear policies and robust procedures which ensure high standards of food safety and hygiene are front and centre for any business in the food & drink sector. That same rigour is applied to safety and environmental management, whether in manufacturing, warehousing or transport and logistics operations.

However, no matter how robust they are, safety and environmental management systems can never completely eliminate the possibility of an incident occurring. It is impossible to avoid the risk of a colleague forgetting to follow the correct procedure, making a mistake, or inadvertently making a situation worse when trying to do the right thing. No procedure, no matter how carefully prepared, can avoid human factor risks.

Managing human factors is not just relevant in the prevention of incidents but is also of critical importance in any subsequent investigation. This may be an internal investigation, or one conducted by the relevant regulator, such as SEPA, the Health & Safety Executive, or Food Standards Scotland. Regulatory investigations are by their very nature reactive. They are instigated at very short notice and inevitably occur at the worst possible time and are inherently stressful for all concerned. In other words, they are the perfect environment for human failings to occur.

It is important to manage human factors to protect colleagues during the stress and strain of a regulatory investigation, particularly when being interviewed by officers, investigators or inspectors. This article examines some of the key steps we advise clients to take in order to look after their people and how to minimise the risk of human errors causing problems during an investigation.

• Understand the nature of the interview. As part of its investigation, the regulator will seek to interview employees. It is essential therefore that the person being interviewed understands the purpose and nature of that interview. Is he or she being spoken to as a witness purely to a fact, or as someone potentially responsible for the failures that occurred and so as someone suspected of a criminal offence? Is the interviewee being spoken to as an individual or as a representative of the organisation? If it is in the capacity of a witness, is the statement being given voluntarily or on a compelled basis? Should the witness be seeking the protections offered by giving a compelled statement?

Witnesses can decline to answer questions when giving a voluntary statement but what they do or say could be used as evidence against them in due course if they are charged with an offence. A compelled statement, on the other hand, affords them a degree of personal protection, as the contents cannot be used against them in any subsequent proceedings.

Ensuring that your employees understand their options and the nature of the interview well in advance avoids the wrong option being chosen on the day which could result in problems for the employee, the organisation or both. It also allows consideration to be given to the question of legal representation at the interview.

• Put forward the right person. More often than not investigators will have a specific person that they want to interview, but there are times when you will be asked to suggest "the right person to explain your process for…" If given the opportunity to nominate someone, take the time to make sure you choose the right person. Inevitably you will be inclined to put forward the most senior person, but are they the most knowledgeable about how things work in practice? Think about the personality of the individual you propose. Do they stay calm under pressure, or do they tend to become argumentative? Is there a risk that the way they approach the interview will negatively impact the overall tone of the whole investigation?

• Do your homework and don’t get caught out. There is nothing worse for a witness than being presented with a document they have never seen before and being asked to comment on it. In that situation it is human nature to try to assist, but that inevitably involves speculation and opinion rather than fact. To minimise the risk of that, think about the issues that are likely to be put to each witness in advance and provide them with a briefing pack of the key documents. Remember that the investigators will have been able to recover information and documentation from a number of sources, so always factor in documentation that could have been obtained from your customers or supply chain This is particularly so in the latter phase of the investigation.

• Give interviewees plenty of preparation time. It follows from the above that time spent on detailed preparation will minimise the chances of human error during an investigatory interview. Don’t expect your employees to be able to prepare properly for an interview and do their day job at the same time. Allow them to spend time away from their day-to-day duties and make sure they have advice and support from your HR and legal teams if they want it. Don’t expect your employees to prepare "out of hours". The last thing you want is someone attending a potentially long and draining interview when already fatigued.

• Avoid over-sharing. In a formal interview, it is human nature to want to help the investigators and to offer explanations for why things went wrong. There is absolutely nothing wrong with proactive co-operation with an investigation. But there is a world of a difference between co-operation and oversharing. You will no doubt be carrying out your own internal investigation alongside the formal regulatory investigation. If employees who are involved in your internal investigation are also being interviewed by the regulator, make sure they know that the internal investigation documents are confidential and very likely to be covered by legal privilege. The last thing you want is for a well-intentioned employee to offer a copy of the draft internal investigation report to the regulator thinking that it will help them with their investigation. Again, it may well be that sharing the report is the right thing to do in the fullness of time. But only when it is in its final form and legal advice has been sought on the benefit of its release.

You would be correct to think that none of these measures is particularly complicated. They are not – indeed most of them are common sense. However, uncomplicated, common-sense steps become incredibly challenging in the face of demands for documentation and intense scrutiny during an investigation. Every business should take the time to think about these measures now and put a plan in place. If the worst should ever happen, the last thing you want to be is unprepared.

One of the most effective ways to prepare for the pressure of a regulatory interview is to act out a real-life scenario, giving your teams an idea of what to expect in such a case. We are often asked by clients to provide interactive, industry-specific training, conducting role-plays and providing coaching and feedback, so that in the event that the worst happens, and you find yourself subject to an investigation, your team can manage the situation better.

To contact Clare or Malcolm about training options visit brodies.com where you can also listen to the recent health and safety podcast series by Brodies.