August EWJ 24 - Flipbook - Page 65
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.
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?
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.
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.
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?
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.
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.
EXPERT WITNESS JOURNAL
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AUGUST 2024
