In cases of potential fraud, there can be several different groups involved in the investigation. It is important to be clear on the role of each party and that HR has a responsibility to make sure that the company’s employment obligations are met.
If the police or other external body are involved, they may wish you to pause any internal investigation to allow them to undertake their enquiries. HR professionals should be guided by this and ensure that this is communicated to the employee (and their representative if they have one). The police may be unwilling to disclose evidence they have if they believe it might prejudice a prosecution. Similarly, an employee may be advised by their lawyer that participating in a workplace investigation might be harmful to any potential defence and they may refuse to co-operate or provide any information.
In both these situations, HR professionals need to consider how to deal with this. A police investigation might take months (or even years in a complex case) and it would not be reasonable for an employer to maintain an employee on suspension for such a prolonged period. Equally, a refusal to co-operate with an investigation (or to attend a subsequent disciplinary hearing) may not in itself prevent you from dealing with the employment aspects as you can take decisions based on the evidence available.
If an employee is in custody and is unable to attend meetings, you may wish to consider written submissions from them.
If your organisation has specialist fraud investigators, they will normally take the lead in any investigation process. It is important however that there is close cooperation between them and HR. The investigators need to understand the employment law implications – this may be dealt with via training or, in some cases, by having HR representatives sit in on interviews. Whatever approach is taken, it is important that both work closely together, communicate effectively and ensure that their actions are complementary. In certain situations, it may be necessary for fraud investigations to commence without HR knowledge but HR should be informed at the earliest opportunity.
The circumstances of each case are likely to be different and if in doubt HR should take advice from employment lawyers to ensure that the employment aspects are dealt with correctly while ensuring that specialist are able to conduct their investigation thoroughly.
Remember that the standard of proof is different in an employment matter than a criminal matter. In employment the test is the balance of probability while a criminal situation requires a higher standard of beyond reasonable doubt. This means that you may be able to fairly dismiss an employee even if the police decide not to take matters further.