As we move tentatively out of the shadow of Covid-19, being mindful that a second wave or local lockdowns could still happen, what lessons can we take forward to ensure investigation work continues in an unpredictable environment?
We know that, despite the operational challenges of working in a remote environment, the regulatory obligations on firms have not changed. The Financial Conduct Authority (FCA) still expects firms to act within a reasonable timeframe to identify risks and/or potential misconduct. Indeed, firms are facing an increased risk of employee misconduct as a result of the remote working arrangements. This is not to forget those investigations which were already on foot and have been paused or delayed due to the challenges of the pandemic.
Whilst many firms in March/April, as the realities of a complete lockdown became apparent, were considering delaying existing or potential investigations until the circumstances returned to normal, the outlook now is very different. Whilst some firms are back in the office, a substantial proportion of firms will see many employees, including its legal and compliance teams, working remotely into 2021. It is therefore not practical or advisable to pause investigations in the medium term as this could lead to increased litigation and regulatory risks.
We have learnt a great deal from the last few months and there are several ways to mitigate the risks and potential challenges of carrying out investigations remotely. We share some of this experience below.
Subject or witness interviews form a key aspect of most investigations, particularly if the investigation needs to consider the credibility of a subject or to test differing accounts of a situation. This activity, however, potentially poses the greatest challenge/risk in a remote environment. Video conferencing or telephone conferencing is widely available and accessible but it is undoubtedly more difficult to build rapport with a subject over video conference. It is also more difficult to evaluate the soft cues given by an interviewee such as demeanour, hand gestures and body posture.
Other considerations include:
Some regulators are now considering re-starting in person interviews. Each face to face interview should be subject to individual risk assessment with consideration given to the interview environment as well as the individual circumstances of each person attending. Firms may wish to choose a neutral venue which is easily accessible by all parties.
The pandemic situation has accelerated technological change and attitudes along with our ability to carry out investigations remotely in an effective way. As we move back to an environment where we can carry out face to face interviews and meetings, we can utilise the lessons learnt to provide a more agile and adaptable investigations model. Firms now have more options open to them in the investigation process, as long as appropriate steps are taken to mitigate the risks and pitfalls discussed above.
The future of cash savings in 2021Read more
APP fraud: Court hands down judgment on the extent of the Quincecare...Read more
Claire Graham joins board of North West Fraud ForumRead more
Beyond Brexit: services trackerRead more
Implementation of the Breathing Space Regulations - what secured...Read more
Beyond BrexitRead more
Evolving cities: Green financeRead more
Mortgage and home finance regulation in 2021Read more
Insolvency Practitioners, GDPR & BrexitRead more
The widespread disruption and closure of businesses caused by the Covid-19 pandemic and the subsequent national and local lockdowns has brought into sharp focus the question of available insurance cover for losses under...Read more
Helping you navigate your business through the risks and opportunities that Brexit will bring.Read more
Watch our video series for information on the legal issues that are affecting the real estate sector. Each...Read more
The way people shop is constantly evolving, from the growth of online and the changing use of stores...Read more
The pandemic has had a deep and long-lasting effect on the leisure, food & drink sector, forcing operators to embrace new ways of attracting and servicing customers.Read more
The pandemic has forced the majority of the workforce into a world of remote working. As a result, our cities are evolving.Read more
Our countdown to Brexit and beyond podcast series looks at the impact for businesses on both sides of the pond of any free trade agreement between the UK and Europe and the UK and the US. ThisRead more
There's a growing demand for retailers to do more to attract the Purple Pound – the collective spending power of disabled shoppers, estimated to be worth around £274bn. We look at the opportunities, the legal issues and...Read more
Green finance is gaining speed, driven by global climate change pressures and the recognition of the vital role which sustainability plays in a resilient financial services sector.Read more