External investigations: what about the rights of staff members?

External investigations have become widespread among international organizations. These external investigations seek to address the perceived lack of objectivity of internal investigations. At the same time, however, external investigations raise issues regarding the adversarial nature of these proceedings and the equality of arms between the international organization ordering the investigation and the staff member undergoing the investigation.

In a recent decision, the Administrative Tribunal of the International Labour Organization (ILOAT) has spoken out on the legal nature and consequences of these external investigations (ILOAT Judgment 4776 of 31 January 2024).

Background:

The facts underlying this case relate to a sexual harassment complaint against a staff member of the FAO. During this investigation, the staff member – in turn – filed a complaint against an (internal) investigator alleging harassment and abuse of authority on behalf of this (internal) investigator. This complaint of the staff member was investigated by an (external) investigator who provided a preliminary review report stating the misconduct was not proven and recommending to close the case without further investigation. This preliminary report hereby founded the impugned decision of the organization to close the complaint of the complainant.

When the staff member requested to be provided with a copy of the preliminary review report of the external investigator, the request was denied based on the consideration that the report was a confidential document which could not be disclosed at the stage of a preliminary review.

The staff member then appealed this refusal decision internally, but to no avail.

The staff member thus requested the ILOAT to set aside impugned decision, to order a full investigation by the organization and to award moral damages.

On the merits:

The Tribunal refers to ILOAT Judgment 4471 where the Tribunal stated that, in principle, the content of an investigation report should be communicated to a staff member, based on settled case law that a staff member must, as a general rule, have access to all the evidence on which the competent authority bases its decision concerning him or her (hereby referring to ILOAT Judgments 4471, consideration 14, and 4217, consideration 4). The Tribunal also reiterated that, as revealed in ILO Judgments 4471 and 4663, consideration 7, the subsequent provision of this report does not repair the fact that the report was not provided before the impugned decision was made.

The Tribunal then continues its reasoning by considering that this case law does not, however, apply in the case of a preliminary review, which is merely a preliminary assessment preceding the full investigation during which the assessment of the internal complaint is made (ILOAT Judgements 3640, consideration 5, 3777, consideration 15, and 4034, consideration 7). According to the Tribunal, such a preliminary review is merely “being done for the purpose of ascertaining whether the case advanced by the complainant could, if made out in a full investigation, constitute harassment or abuse of authority” and that there is no apparent purpose to disclose such a review.

The Tribunal consequentially considers that it will be necessary to determine, by parity of reasoning, whether the report was a full investigation or merely a preliminary review, in which case there was no need for the organization to apply the adversarial principle and it was not obliged to provide the staff member with a copy of the preliminary review report when it was requested. In the present case, the organization’s internal regulations stipulated that a preliminary review was to be conducted with the aim of determining whether the alleged conduct met the criteria for harassment, hereby implicitly confirming that a complaint can be closed after the preliminary review in the event the issue would not meet these criteria. The Tribunal, however, considers that although the investigation may have been nominally a preliminary review, in substance it was not. Given the scope of the investigation and the fact that the external investigator “interviewed a range of individuals and, by reference to what they said, effectively made findings of fact and rejected contentions of the complainant”, he “travelled beyond the bounds of what was contemplated as ordinarily the scope of a preliminary review”.

The Tribunal ultimately concludes that the preliminary review developed into a full investigation and that, consequently, the staff member should have been provided with a copy of the preliminary review report.

Importance of the judgement:

As mentioned earlier, the judgment in question touches upon the legal nature and consequences of external investigations. External investigations, while they seek to address the perceived lack of objectivity of internal investigations, are usually instructed without involvement of the staff member concerned, hereby raising issues regarding the adversarial nature of these proceedings and the equality of arms between the organization and the staff member.

The present judgment confirms the main principles of its earlier case law that, on the one hand, a staff member must have access to all the evidence on which an organization bases its decision, and that, on the other hand, a preliminary review or assessment preceding the start of an actual investigation does not need to offer the same procedural guarantees. In this context, the judgment indicated that the Tribunal applies a substance over form approach.

An important, albeit implicit, aspect of the judgment at hand is that the Tribunal does not treat the procedural safeguards any different whether it concerns an internal investigation or an external investigation. This means that the organization remains responsible for guaranteeing the necessary procedural safeguards during an investigation, even when the organization is not conducting, or even able to influence, the investigation. In turn, it means that the external investigator must be fully versed in and familiar with the internal rules of the organization and, by extension, the rulings of the ILOAT in the framework of which these internal rules should be interpreted. This is a considerable engagement of the external investigator taking on this responsibility.

by Phebe Wyseur and Antoine Bruglemans