In the run up to the Six Nations, Welsh Rugby has found itself at the centre of a cultural crisis. Allegations of bullying, sexism and racism inside the Welsh Rugby Union ("WRU") have been widely reported in the press, such that the WRU chair, Ieuan Evans, has warned that the future of Welsh rugby is in danger. In this article, we reflect on the ways in which investigations into allegations of widespread culture issues should be approached, and the key challenges to consider before undertaking them.
Institutions are under ever-increasing scrutiny to take ownership of their culture and to ensure that their values are communicated clearly both within and outside the organisation. Good culture is now also seen as a business imperative. It is an essential tool for maintaining productivity, employee retention and good public relations. In March last year, the Chartered Institute of Internal Auditors launched a report into corporate culture with Sir Jon Thompson, Chief Executive of the Financial Reporting Council, commenting that, "A series of company collapses linked to unhealthy cultures — whether that be BHS, Carillion, Greensill or Patisserie Valerie — have demonstrated why cultivating a healthy culture, underpinned by the right tone from the top, is fundamental to business success”.
The WRU has now announced that Dame Anne Rafferty DBE PC will lead an investigation in response to the allegations of its toxic culture. But what are the key considerations when managing such a far-reaching investigatory process and how can any findings be used to develop solutions?
Consider the scope and establish a clear remit before any investigation is commenced
When the issues that bring about an investigation are widespread and difficult to define, it is all the more important to establish a scope of work before the investigation begins. Unlike a targeted inquiry focused on specifics, an investigation into cultural failings has the potential to be ever-expanding.
It is important to plan out the scope of any investigation into culture by considering the context of the complaints. There is a balance to be struck between ensuring that the investigation is wide-ranging enough to get a proper picture of the issues at hand, and limiting the scope so that the exercise does not become an endless disruption to the business.
Such considerations should be carefully recorded in the investigation terms of reference, which should also set out any relevant background, the range of documents to be considered, and the intended timings for each part of the process including interviews, reports and so on.
Ensure the investigation is properly resourced
Where there are systemic issues to be investigated, it is likely to be appropriate to appoint an external investigator. Firstly, an investigation report will carry more weight if it is demonstrably impartial, and an independent external investigator should be able to take an unbiased, birds-eye view of the business. Secondly, wide-ranging investigations require significant time and resources: appointing an expert third party to undertake the investigation can help to minimise business disruption. Having an external investigator can also help address any allegation of 'cover-up' or bias that might arise if the investigation is handled internally.
Be clear about the instructions for output
Before commencing any investigation, it is crucial to have clarity on the report or other output that will be requested of the investigator. Is this a pure fact-finding exercise? Will the investigator be asked to advise on the potential risks (legal or otherwise) to the organisation (and if so, are they suitably qualified to do so)? Will they be asked to make recommendations for remedial steps?
Will the investigation be open/published or is it intended to be private?
In circumstances where the investigation is likely to require widespread engagement from employees and others, there may well be an expectation of transparency and accountability. Indeed, an organisation may be best served by publicising an investigation, particularly where the complaints themselves have been published.
Conversely, there may be situations where, at least initially, an organisation might wish to form a view over the potential issues on a more confidential basis. The protection of legal privilege in investigations is a complex area and careful advice should be sought before commencing any such process.
What will the organisation be willing to do following the investigation if failings are found?
It is advisable to consider in advance what steps might be necessary if failings are found. That might include for example, training, disciplinary action, removing individuals from the organisation, or workplace mediation. Think also about whether the conclusion of an investigation can be used to alter the public image. Addressing issues of cultural failings can provide the opportunity for a good news story which can provide valuable mileage for an organisation keen to show it has made improvements.
To learn more about our Investigations practice or for advice on any of the issues explored above, please see our Workplace Investigations team.