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.
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.