On conducting the investigation
What is the significance of the Responsible Official’s terms of reference?
As the panel starts its investigation, the panel will be provided with terms of reference which will set out the scope of the investigation. It is crucial the panel is clear about the parameters of the investigation. If the terms require further clarification, the panel must seek such clarification from the responsible official. If the issue of widening the investigation arises, read here.
Who notifies the subject?
See the section on interviewing the subject in the interview page.
How much evidence does the panel need to collect?
See the section titled "what evidence does the panel need" in scoping and planning the investigation.
What should the panel do about new evidence or allegations coming to light after an interview?
It may be necessary to re-interview witnesses (particularly the subject) to clarify information previously given or to give them the opportunity to respond to particular elements of the information gathered. This is particularly important with regards to the subject as, prior to concluding the investigation, the panel should ensure that the subject is given an opportunity to comment on the evidence given by others which implicate the subject. Remember however that the panel is bound by its terms of reference and must not investigate more widely.
What should the panel do if new allegations come to light during the investigation?
It may be necessary to re-interview witnesses (particularly the subject) to clarify information previously given or to give them the opportunity to respond to particular elements of the information gathered. This is particularly important with regards to the subject as, prior to concluding the investigation, the panel should ensure that the subject is given an opportunity to comment on the evidence given by others which implicate the subject. Remember however that the panel is bound by its terms of reference and must not investigate more widely. It may happen that as the panel obtains evidence, the panel finds evidence of prohibited conduct or other misconduct which does not form part of the terms of reference (e.g. the panel is investigating harassment of a staff member and the panel is made aware of allegations that do not relate to the terms of reference). If so, the panel must not investigate this further possible misconduct but refer it to the Responsible Official. The Responsible Official may then extend the panel’s terms of reference and if so, the panel can then investigate it. The Responsible Official may also refer the possible misconduct to OIOS.
Will OIOS help panels if need be?
Yes, panel members can turn to the Investigations Division of OIOS if they need technical advice, have questions on methodology or a request for a search or ICT forensic analysis. However, OIOS will not get involved in the substance and details of the case and will not clear a panel’s investigation report or provide comments on these because the investigation is the panel’s responsibility.
What if the people we want to interview do not want to cooperate?
Read here (see the section on cooperation)
Should the panel record interviews or take notes?
Read here (see the section titled "during the interview")
What information should be provided to an aggrieved individual/witness before and during an interview?
Read here (see the section tilted "before the start of interviews")
What information should be provided to a subject before and during an interview?
Read here(see the section "interviewing the subject")
How do we first address a witness and how much information needs to be provided in the invitation to an interview?
Read here (see the section tilted "before the start of interviews")
What if the panel doesn’t think a witness is relevant but the subject has asked the panel to interview them?
The panel should interview witnesses who have material and relevant evidence to provide. It may be helpful to identify how the person is expected to help the panel’s fact finding. For instance, if a complainant says that soon after an incident she went and told a colleague about it, the panel would need to speak with the colleague about this conversation.
Does the panel have to tell the subject who it is interviewing?
No but the panel may put to other witnesses, including the subject, what witnesses have told the panel, in order they have a chance to respond as part of a fair process.
Are those interviewed allowed to bring someone with them and what is their role?
Are the interviewees allowed to tape record their interviews?
No. Interviewees are not allowed to tape record their interviews. This is to prevent that information being used and shared outside the investigation.
Will interviewees get a copy of their record of interview?
No, they will not get a copy. Only subjects get a copy of their interview record if they have signed it. However, like all other interviewees, they are not entitled to retain copies of any documents/evidence material during the investigation stage. Note if the interview is audio-recoreded, they are only entitled to the audio-recording
Where should interviews take place?
It is best to try and conduct interviews away from the office environment from which the report has occurred. Ideally, a private and comfortable interview room well away (a different floor or building) from the parties concerned should be sourced. This, at least in part, affords the parties involved some form of privacy and level of comfort when completing interviews. In exceptional cases only, e.g. when an interviewee has left the Organization or is on extended leave away from the duty station can the interview be conducted remotely (e.g. on the phone or video conference). Subject interviews should always be conducted in person.)
Does the whole panel have to be present at interviews?
All panel members should be present during the interview. Panel members should (between them) make each person’s responsibilities clear. For example, one person should take the lead during the interview while the other asks follow up questions and makes notes of the conversation.
Can an interviewee insist on a translator / interpreter?
It is essential that those being interviewed understand what they are being asked. Interviews should generally be conducted in English or French and there is an expectation that UN staff members will be able to fluently speak one of these languages. If a non-UN witness does not possess a good command of English or French, he or she will be interviewed in his or her own language, whenever feasible, using independent interpreters. The panel should coordinate with the responsible official when interpreters are required.
In which order should people be interviewed?
The panel must also decide on the order of interviews as part of their interview plan. The complainant should normally be interviewed first, then the other witnesses and then the subject. It is generally accepted best practice for an investigator to try and gather and analyze all relevant information and evidence prior to speaking to any subject. By doing so the investigator has the opportunity to form a thorough understanding of the matters under investigation and use this to complete a logical and thorough subject interview. It is also important to gather sufficient information about the case before interviewing the subject to protect the evidence from possible influence by the subject and, most importantly, for reasons of fairness: the subject must have the opportunity to provide his or her version of the facts, which includes being given an opportunity to comment on the information obtained so far. There may be occasions when circumstances dictate that the subject has to be spoken to before the last witness. When this occurs the panel has to follow suit. This also means that the panel may have to interview the subject again if more information is obtained after their interview.
Can witnesses / subjects be interviewed more than once?
Ideally, a witness’ full account will be explored and obtained during an interview. Occasionally, conflicting or new information on a critical point may necessitate re-interviewing witnesses and the victim. Where the subject is concerned, a re-interview may be required to ensure fairness: remember the subject must have the opportunity to provide their version of the facts, which means being given an opportunity to comment on the information obtained by the panel.
Can interviews be conducted remotely (phone, video conference etc)?
It is best to try and conduct interviews away from the office environment from which the report has occurred. Ideally, a private and comfortable interview room well away (a different floor or building) from the parties concerned should be sourced. This, at least in part, affords the parties involved some form of privacy and level of comfort when completing interviews. In exceptional cases only, e.g. when an interviewee has left the Organization or is on extended leave away from the duty station can the interview be conducted remotely (e.g. on the phone or video conference). Subject interviews should always be conducted in person.
Is someone entitled to legal representation during the investigation?
Any party involved in an investigation of possible prohibited conduct may consult OSLA for advice but there is no right be represented and/or accompanied by legal counsel (whether from OSLA or other legal representatives) during an interview or otherwise in the investigation.
What if the interviewee refuses to sign the record of interview?
Panel members should make a note on the record of the interview stating the reason why the interviewee did not agree to sign: “The panel notes that Mr./Ms … did not agree to sign this record of interview because…”. The record will still be used as evidence and in the investigation report.
Can the interviewee make changes to the Q&A after reading it immediately following the interview or even several days later?
Yes, the interviewee can make changes when he/she checks the record and the panel will incorporate them in the Q & A, reprint it and resubmit it for signature. Minor changes can be handwritten and initialed/dated by the interviewee – no reprinting is necessary. If the changes are major and amount to a different position of the interviewee with respect to a discussed issue, the panel should ask the interviewee for a written and signed clarifying statement instead of reprinting the Q&A. Always keep the original Q & A and the amended version as part of the case file. If the interviewee sends a clarifying statement, add this document or e-mail to the case-file. To offer the submission of a clarifying statement might also be helpful if the interviewee asks for changes repeatedly or several days after the interview. In the report, the panel will refer to all versions provided, as relevant.
Fear / intimidation and related subjects
The complainant requests a formal procedure on the one hand, on the other hand they want complete confidentiality – how can we resolve this contradiction?
Explain the rules around confidentiality, namely that interviewees must keep the fact of this investigation confidential as well as all information relating to it. The panel will however use what they tell the panel to inform the investigation the results of which may be used for administrative, disciplinary or judicial proceedings. The panel may also put to other witnesses, including the subject, what they have told the panel, in order they have a chance to respond as part of a fair process.
Can the panel recommend that someone be suspended?
Read here (see the section on Administrative Leave)
What can the panel do if a person expresses fear of retaliation?
You should explore this concern with them so you can understand what is at issue. A genuine fear of retaliation should be drawn to the attention of the Responsible Official and the concerned staff member should be directed to the Ethics Office. The fear of retaliation should be properly documented and mentioned in the report as well.
What should panel members do if they are intimidated, harassed or threatened by persons involved or interested in the investigation?
If, as a panel member, you are are intimidated, harassed or threatened by persons involved or interested in the investigation, you should first ask the person to refrain from such behaviour and document any incidents. Second, inform the responsible official and require request assistance. Third, if there is an immediate threat, stalking or other security issues, immediately inform Security.
What should the panel do if new allegations come to light during the investigation?
In such a situation, the panel should report to the responsible official or to OIOS that there is information on possible misconduct.
Can panel members socialize with the complainant or subject?
The answer is no. Panel members could appear as not impartial, even if they believe that they are. The mere appearance of bias can compromise the whole investigation.
Can the panel request someone to seek assistance from the medical service or staff before going ahead with the investigation?
If the panel has concerns about someone’s wellbeing during an investigation, the panel should advise them of available support mechanisms, such as the Staff Counsellor. If concerns arise during the course of an interview, for instance if the interviewee appears unwell or distressed, the panel should take a break before proceeding.
On reports / decisions
How do panels make findings of fact when the witnesses are giving different accounts?
Read here (see the section on assessing credibility)
If the subject says that his or her remarks were merely jokes, does this behaviour become irrelevant with regard to the investigation?
If the subject states the behaviour was not intended as harassing, this is not the end of the matter. The intention of the subject does not matter for the definition of harassment. The investigation should focus on how the complainant perceived the behaviour, whether the behaviour fits the objective criteria and if there was an impact on the working environment. So if, for instance, the subject found certain comments and emails from the subject so rude as to be harassing, and the subject responds they did not intend to be rude in any way, the question for the panel is how the complainant genuinely perceived the comments and emails, how they are to be judged against UN standards and UN environment and what was their impact on the working environment for the complainant.
What does the panel do if it cannot agree as a panel?
The panel must submit a report as the final product of the investigation. The report is based on the evidence gathered during the investigation. Disagreement amongst panel members can occur and can even persist until the end of the investigation. If the panel cannot eliminate disagreement through discussions, the disagreement should be reflected in the findings and conclusions. The disagreement may also be documented in more detail in a separate note-to-file.
Can panel members issue recommendations in their report?
No. The report should contain the panel’s findings of fact on the reported allegations under the panel’s terms of reference. However, the panel may make general observations that have come to light during the investigation in a separate memorandum to the responsible official.
Can the panel share details of the investigation with the responsible official?
The responsible official will only receive your final report of investigation. During the investigation, avoid sharing details with the responsible official and do not allow interference with the panel’s investigation. Of course, if there are matters that concern the procedure, administrative issues or if you encounter any major obstacles, the panel would consult with the responsible official.
Who else will know about the case besides the responsible official and the panel members?
Generally, information is only shared on a need to know basis as the investigation is protected by confidentiality. In particular, fairness requires that the subject has an opportunity to comment on the evidence adduced. During the investigation, there might be administrative staff or translators who assist. They must sign the declaration of confidentiality. Of course, if the case proceeds to the level of OHR and a disciplinary procedure, more people will know about the case in other parts of the Organization. There is also a potential for information to be leaked, confidentiality to be breached, especially in small missions, and for that reason, the panel should operate as discreetly as possible.
What if the complainant withdraws their complaint before the panel has issued a report?
Complainants can withdraw complaints at any time, but it does not mean the investigation is at an end. A report should be submitted based on the evidence already obtained by the panel. Complainants may also decide to move to an informal resolution, which is permissible and will impact the investigation, including whether it should continue. Any decision to place an investigation on hold pending the outcome of an informal resolution should be discussed in consultation with OHR and the responsible official.
Can the panel share the final report with the complainant and the subject?
The panel should not communicate the outcome of the investigation, or the investigation findings, to the subject or complainant. The appropriate communication will take place at a later stage depending on what action is taken on the basis of the evidence contained in the investigation report.
Can the panel suggest mediation to the victim or offer to conduct a meeting between the parties?
No. That is a matter for the Responsible Official.
What happens if the panel does not conclude the investigation within the time frame specified by the responsible official?
The investigation report and case file should be submitted to the responsible official within the time frame set out by the responsible official in the panel’s terms of reference. It is possible that, due to the complexity of the case, or for reasons beyond the panel’s expectations, the investigation is delayed. The panel must make sure to keep a record of the reasons that delay the investigation, and if necessary, seek an extension of time from the responsible official.