Understanding more about Forensic HR

The background

We are all aware that the police use forensic techniques to collect evidence and build a criminal case. Likewise many will be aware of the growing discipline of Forensic Accounting and Taxation which often results in expert witness presentations in court for criminal or civil actions.

Forensic HR (FHR) is still quite rare in the UK partly because of how HR practitioners are trained.  Initially they qualify with the CIPD (Chartered Institute of Personnel and Development) who don’t recognise or promote FHR and then most of their CPD is in the form of legal updates led by lawyers whose risk adverse cautious approach is infectious. Lawyers are informed by case law which is basically the latest legal argument or debate.  Interestingly recent case law allows employers to monitor private telephone calls if they have reasonable cause to do so.

Forensic HR is more common in countries like America, South African and Australia.

Ultimately anyone in dispute wants a swift resolution and the law allows companies to agree Settlements with employees without going through a protracted disciplinary process although the majority of companies seem to go through a long process as advised by their HR department, legal helpline or lawyers before they agree to settle. Likewise good contracts of employment will usually have the provision for reasonable investigations if the employer has just cause.

What is it?

In a nutshell the Forensic HR expert is called in to hear an allegation or suspicions regarding an individual, group of individuals or a company. Often the individual or company has an outstanding complex case and what is required is new or fresh evidence to present a counter claim or new angle and help close the matter.

The Forensic HR expert will always ensure there is just cause to investigate and that any investigations don’t stray out of a tight and agreed remit. Likewise if they feel there are any medical concerns they will ensure those are closed off before and if they proceed. Any investigations must meet the high standards demanded by the CIPD code of conduct and be both ethical and lawful.

Typical investigations can include:

  • Private investigators – for cases like sickness absence where there is good reason to suspect the case is not genuine or theft where stock is going missing or where the company wishes to investigate a potential new senior employee
  • Forensic laboratory techniques – To restore a document to it’s original state like a taxi receipt, set of accounts, or hard copy notes from a meeting.
  • CV, qualification & background checking services – to verify that every piece of information given to the employer is 100% correct.
  • Social media searches – it is quite common for employees to put information on social media and therefore in the public domain that is useful to a FHR investigation.
  • PC, mobile and other devices investigations – Looking at this in-house or sending it away to recreate deleted files. Particular focus on emails sent by the employee externally.
  • Interviews as part of a Protected discussion which present select pieces of evidence and use of intensive interviewing techniques designed to stress test the individuals case & resolve.
  • Time recording evidence – Many companies have systems which track how long employees are in the office or online. This information can be very useful.

The skill with Forensic HR is to gather just enough evidence to help present a case and agree a settlement.  The purpose is always to avoid paying out large sums due to fear or management incompetence. The forensic HR expert will often be looking in a different area to the one the complaint originated from.

Forensic HR takes a brief from the highest level within a company and needs an “Access All Areas Pass” to carry out a thorough investigation & present a report and recommended actions. Often we may take charge of negotiations with the employee regarding a swift exit or they can work closely with the in-house HR team, employment lawyers etc

A Forensic HR case

A great example of a successful Forensic HR case was a large firm of brokers who employed a well connected female broker whose nationality was Greek. She enjoyed lots of flexibility from her employer including 10 weeks paid leave to return to Greece when her father was ill.

One evening when her boss had gone home without signing out, she accessed his emails (without his permission) and saw that he had referred to her as a “bubble” in a jokey conversation with a collegue about how long she took off. He had said “These bubbles take a lot of time off”. (From the Cockney rhyming slang – bubble and squeak – Greek).

She immediately complained to HR that this was racially offensive and as the Director admitted he had said it, he was suspended pending an investigation.  He made a lot of money for the firm and was unable to trade. The firm were advised by a lawyer they consulted that as racism was discrimination, the total compensation paid out could be excessive as it would be uncapped.

Amelore were brought in by the CEO who was flabbergasted by this and wanted an alternative viewpoint. We quickly investigated and presented a case to show that she had regularly altered her taxi receipts to claim expenses relating to the weekends & also traded over her limit. Neither had been picked up or challenged as staff were frightened of her.   

She also had no right to access her bosses emails without permission which was a disciplinary matter in itself. She was a registered person with the FCA so when dismissed for gross misconduct it was the end of her career.  She was not entitled to any notice or other pay.

As part of our service we did some training with the HR team who had failed to see the bigger picture.

Can any HR practitioner have a go at Forensic HR?

Forensic HR should only be practiced by individuals with long experience of Employee Relations; a good understanding of employment and other relevant legislation, human behaviour and the right type of inquisitive, intelligent, objective and impartial approach. Training is recommended. Equally it is much harder to practice Forensic HR as an in-house practitioner. As the employer you have a duty of care to the individual you are investigating and this can present a conflict of interest. Likewise the trust and confidence in HR by the rest of the workforce may be damaged by your actions.

Criminal cases

Whilst most companies choose not to pass information on to the Police once an investigation is concluded, some of our clients have done this for extremely serious cases which have resulted in custodial sentences.  All our investigations are highly confidential however, if we come across anything that is criminal, involves children or vulnerable persons we will immediately notify the relevant authorities.

A good result

Ultimately Forensic HR is about saving the Company money – reducing a potential liability by introducing and presenting a stronger case. But equally its about leaving the organisation in a better and stronger place. Our final debrief with the CEO/COO/FD/HRD is a critical and important part of the process.

If you are interested in finding out more about Forensic HR or arranging some training for your HR team, do get in contact with us.

www.amelore.com

Upcoming employment law changes for 2016

In 2016, employers will begin to feel the impact of the employment law reforms made by the first Conservative Government in nearly 20 years, with some controversial decisions affecting a number of areas in the world of employment.

Employment law dates at a glance

11 January 2016 Zero hours employees and workers gain protection rights against employers trying to exercise exclusivity clauses.
1 April 2016 Prospective enforcement date of a cap on public sector exit payments.
6 April 2016 ‘National Living Wage’ (NLW) will be introduced for workers aged 25 and over. A 50p premium will be added to the existing National Minimum Wage.

For more information see the Government’s National Living Wage policy document page.

Jan – June 2016 Gender pay gap reporting draft regulations.
Jan – June 2016 Consultation expected on extension of shared parental leave and pay to working grandparents.
October 2016 Earliest likely implementation date for measures in the Immigration Bill 2015-16.
April 2017 Apprenticeship levy due to take effect.
September 2017 30 hours free childcare becomes available for 3 and 4 year-olds in working families.
2018 The government plans to extend ordinary parental leave, the 18 weeks unpaid leave that may be taken by a parent until their child is 18, to grandparents as well.

The introduction of the national living wage sees a major change to minimum pay levels; this will be a big issue for many employers as they consider how to introduce it.

For the first time, large employers will also be required to publish details of their gender pay gap.

Aside from these two big reforms, other changes to which employers need to pay attention include the Trade Union Bill and new rules on exit payments for public-sector workers.

Read our guide to the key employment law changes in 2016 to ensure you have a head start to the year ahead. 

  1. Gender pay reporting begins

We know that regulations must be introduced by 26 March 2016 that will make it compulsory for organisations with 250 or more employees to publish information about the difference in pay between men and women. This will need to include details of the gap in bonus payments.

However, further details of what this means for employers are yet to be disclosed, including the particulars that they will need to provide and where the information should be published.

It is expected that employers will be given time to get to grips with the legislation before the reporting requirements come into force.

  1. 2. National Living Wage introduced

A significant change for the lowest-paid workers is the introduction of the national living wage on 1 April 2016.

For the first time, employers will need to pay staff aged 25 and over the national living wage, which will work as a new top rate of the national minimum wage. For those aged under 25, lower national minimum wage rates will apply.

The national living wage is initially set at £7.20.

The national living wage is separate to the living wage, a recommended rate based on the cost of living, used by the Living Wage Foundation.

Another change concerning minimum pay is the doubling of the penalty for failure to pay staff the national minimum.

  1. Statutory parental pay rates and sick pay frozen

The Government has proposed that the annual increase in the weekly rate of statutory maternity pay, statutory paternity pay, statutory adoption pay and statutory shared parental pay will not happen in 2016.  The rates normally increase every year, but a fall in the consumer prices index has meant no uplift for 2016/17.

Statutory sick pay will also remain the same.

  1. Restrictions placed on public-sector exit payments

Payments made to public-sector staff when they leave their job are subject to new rules.

First, to limit excessive payments, exit payments for public-sector staff are capped at £95,000.  There is no confirmed implementation date for this change.

Second, from 1 April 2016, there will be a requirement for public-sector employees with annual earnings of £100,000 or more to repay exit payments where they return to work in the same part of the sector within 12 months.

  1. Trade union law amended

The Trade Union Bill reforms the law applying to trade unions, including placing more stringent requirements on trade unions before they take industrial action.

The measures include: increasing the voting threshold to 50%; introducing a requirement that 40% of all those entitled to vote in the ballot vote in favour of industrial action in important public services; setting a four-month time limit for industrial action after the ballot; and increasing the amount of notice to be given to an employer of strike action.

  1. Workers given power to seek redress where employer ignores ban on exclusivity clauses.

Exclusivity clauses in zero hours contracts were prohibited in 2015. New regulations that apply from 11 January 2016 aimed at addressing avoidance of the ban, give employees the power to make a complaint to an employment tribunal where they have been dismissed or subjected to a detriment following breach of an exclusivity clause.

  1. New rules to protect apprenticeships

The Government bans organisations from using the term “apprenticeship” where it is applied to describe a scheme that is not a statutory apprenticeship, for example in a job advert.

There will also be an apprenticeship target for public-sector organisations.

  1. Updating laws on employing foreign workers

The Immigration Bill makes various changes to the law applying to foreign workers, including: creating an offence of illegal working; requiring all public-facing public-sector employees to speak English fluently; and introducing an immigration skills charge for employers that use foreign workers.

If your organisation would like any help and advice about the implications of any of these areas please call us on 01453 548070 or visit our website www.amelore.com

Creative people need a creative support team

We have just heard that Chef Benoit Violier, whose Swiss restaurant was named the best in the world in December, has been found dead at his home.

BBC News reports that Mr Violier, 44, ran the Restaurant de l’Hotel de Ville in Crissier, near the city of Lausanne.  It earned three Michelin stars and came top in France’s La Liste ranking of the world’s 1,000 best eateries.

Swiss police said Mr Violier, who was born in France, appeared to have shot himself. We can only speculate as to the reasons for Mr Violier apparently taking his own life. It is hard to keep at the top of your game especially in the hospitality industry. Sadly, his death comes some six months after that of Philippe Rochat, his mentor and predecessor at the Restaurant de l’Hotel de Ville.

Working with creative people

In our business we have a creative approach to HR and work in a flexible and fluid way with many creative people including chefs.  Often our role is as much about looking after the needs of the creative individual who becomes under increasing strain the more successful their business is, as much as we support the business.

Key stressors for creative leads

  • Excessive working hours.
  • Managing investors and shareholders.
  • Managing demanding staff.
  • Having too many direct reports that are time bandits.
  • Being accountable & responsible for everything.
  • Press, PR, Marketing, HR, Payroll – requiring decisions.
  • Poor work life balance (need to attend events & lack of personal time).
  • Poor diet (yes even chefs) and lack of exercise.
  • Not working in a structured way – giving into the creative side and letting the business side back up.
  • Letting the paperwork get out of control so the paperwork starts to control.
  • Hiring and firing on a whim and getting caught up in Employment Tribunals.

Mistakes that get made

Many creative businesses are often poor at the paperwork side, and when they do realise they need to get more organised often attempt to quickly implement something that is not fit for purpose (way too complicated or generic – more suitable for a very corporate business).

Likewise many businesses will have an Office or Studio Manager or Restaurant Manager attempting to do everything from the website to contracts of employment. It’s very hard to keep control of the situation in this way; and the stress levels!

What works well

We work with businesses in a variety of ways from retained to ad hoc.  In businesses with a strong creative lead we find attending regularly is key so we can pick up what is going on and head off any issues quickly.  Being external helps as does paring back all the paperwork to a core. So everyone understands it and there aren’t long winded staff handbooks that no-one dusts down until there is an ET.

At Amelore we simply don’t do ET’s.  Our approach is one of pragmatisim, commerciality and flexibility.

Give us a call on 01453 548070 or visit our website if you’d like to find out more.