The result of an inquiry will be likely to form the basis for changing the way an organisation conducts its business. An inquiry may often include an appraisal of responsibilities, even individual responsibilities.
In particular, inquiries are called for in organisations when there is a suspicion of criminal activity such as embezzlement, money laundering, corruption etc. They are also held in order to investigate accidents, or when there is a suspicion of major HSE non-conformance that poses a serious risk to life and limb.
Moreover, when there is thought to have been a breach of an organisation’s code of conduct or ethical guidelines/norms, with greater implications than the aforementioned examples, it may be necessary to implement an extremely thorough investigation of the actual circumstances in order to prevent the development of a negative corporate culture.
An inquiry may also be relevant in connection with the need to improve a poor working environment, for example where cases of bullying and harassment are evident.
The Norwegian Bar Association has drawn up inquiry guidelines. Compliance with the provisions of the Working Environment Act and the Personal Data Act is essential in the course of an inquiry. Of particular relevance are the restrictions limiting an employer’s access to an employee’s private email.
An inquiry is normally initiated by the board of directors of a company. A general manager can also launch the inquiry if the matter has arisen within his area of responsibility.
When a company orders an inquiry to be held, it is natural that its intention is clearly reflected in the terms of reference for the inquiry. The terms of reference, together with confirmation of the commission, form the contractual basis for the work of the inquiry.
An employer’s written terms of reference for an inquiry may include:
- the scope of the inquiry, including the factual and legal matters on which clarification is sought,
- the resource persons to be involved in the inquiry,
- the likely duration of the inquiry,
- the relationship between the inquiry team and the client, i.e., the requirement for the inquiry team to be independent of the employer and any other parties involved,
- the form of remuneration, for example whether this is to be paid on the basis of time spent at an agreed hourly rate, or at a fixed price.
At the start of an inquiry, the inquiry team prepares guidelines for its work. Certain aspects should be dealt with here:
- rights of information, inspection, contradiction should be upheld, as well as the remaining rights of the parties involved,
- duration and use of resources,
- method of information collection to be used,
- relation to and demarcation with any parallel processes (for example official audit, police investigation, etc)
The question of which are the affected parties is basically subject to specific evaluation. The legislative background to the Act relating to Public Inquiry Commissions, NOU 2009:9, defines “the affected party” as the one under investigation by the committee of inquiry.
Circumstances relating to the affected party’s rights of inspection, contradiction and privacy, should be clarified in the inquiry commission guidelines. Rights of inspection and contradiction are considered to be reasonable to the extent they are necessary for the task of the inquiry committee. The right of inspection also has a legal basis in the Personal Data Act.
As an inquiry is undertaken as an extension of an employer’s management prerogative, it must be conducted in the correct and appropriate manner. This requires that employees, or others who are affected by the inquiry, be properly treated and that reasonable consideration is paid to any special needs arising. This is in keeping with the employer’s duty of loyalty towards his employees.
Should the inquiry discover that a criminal offence has been committed, then extreme care needs to be taken before a conclusion is reached that names the person(s) responsible. This is due to the protection afforded by the presumption of innocence principle. Furthermore, any request for an affected party to provide an explanation, give an account, or hand over documents, must be considered very carefully in view of the protection the party has against self-incrimination. There may also be restrictions on using information revealed in an inquiry in a subsequent process.
If there is a concurrent police investigation dealing entirely, or even partially, with the circumstances of an inquiry, then the relationship between the inquiry and the police investigation must be clarified. It is essential that the inquiry does not come into conflict with the work of the police.
An inquiry is normally concluded with the publication of a report that includes the following:
- purpose and terms of reference for the inquiry,
- method used in conducting the inquiry,
- description of the facts, including any non-conformance that prompted the inquiry and the cause of these.
An inquiry is normally concluded once the report has been released. If a special committee was set up to conduct the inquiry, this committee will be disbanded.
An inquiry may lead to individual employees facing legal reprisals such as cautioning, notice of dismissal and immediate dismissal. If it is discovered that a criminal offence has been committed, the police will normally be informed and the matter will be placed in their hands.