World@Work: Whistleblowers, Investigations & the Boardroom - A Multi-Jurisdictional Lens

Jennie Mansfield

Hello and welcome to Ashurst Legal Outlook. You're listening to the latest episode in our Employment World@Work series, and our first episode for 2026.

My name is Jennie Mansfield, and I'm a partner in the Sydney Employment team here at Ashurst in Australia.

In this episode, we're looking at issues that come up when boards are overseeing the senior management team or C-suite, particularly relating to how boards should scope an investigation into alleged misconduct to protect the company's interests, and some issues that can arise when a whistleblower raises allegations about a senior executive but doesn't consent to the disclosure of their identity.

I'm joined on this podcast by Clarence Ding, partner in our Singapore Employment practice, Muriel Pariente, partner in our Paris Employment practice, and Dan Ornstein, partner in our London Employment practice. Welcome to all of you.

Starting in Australia where I'm based, we're seeing increasing scrutiny from our financial regulator, ASIC, of corporate culture, the way that boards oversee investigations into financial crime, but also investigations into alleged executive misconduct with lots of consequential bad publicity and shareholder angst when things go wrong.

The Federal Court in Australia recently issued a lengthy judgment looking at the relevant duties of non-executive directors and members of the C-suite at Star Casino, and that judgment strongly emphasised the importance of suitable oversight by boards when it comes to investigations involving senior executives.

Turning to Clarence, what are you seeing in Singapore with respect to executive misconduct?

Clarence Ding

Thanks Jennie. Similar to Australia, there has been heightened public scrutiny of C-suite misconduct in Singapore in recent years, and this largely stems from a spate of high profile cases that we have seen.

So for example, Singapore Post recently dismissed both its Group CEO and Group CFO following findings of negligence in the way they had handled a whistleblower complaint regarding the falsification of delivery codes in order to avoid penalty payments.
Another very high profile case in Singapore involved the founder of oil trading firm Hin Leong, who was sentenced to 13 and a half years in prison for defaulting borrowers and banks of billions of dollars through fabricated oil transactions and forged documents.

Now, the unique thing about Singapore, I think, as well as many jurisdictions in Asia, is that it's not uncommon for C-suite executives to also hold concurrent appointments as directors. These individuals are not only the high profile face of the organisation, but also wield significant influence and power.

So in situations like these, independent director oversight plays a crucial role in ensuring adequate oversight of these individuals. To that end, Singapore has recently introduced a mandatory licensing regime for corporate agents and nominee directors in order to foster heightened awareness of gatekeeper accountability.

The external regulatory environment is also tightening its response. The Singapore Exchange is moving towards a disclosure-based regime in order to place the onus on companies to make timely disclosures of material issues, including internal investigations or misconduct by senior management. This is being used as a way to increase transparency and accountability for boards.

Jennie Mansfield

So given the enhanced regulator scrutiny on investigations, Dan, give us some thoughts on how boards can scope an investigation into alleged misconduct and make sure that they're adequately protecting the company's interests.

Dan Ornstein

Hi Jennie. So from a UK and I think from a global perspective, the scoping of an investigation is critical and I think it can be split into three key areas: governance, process and then substantive issues. Scoping really needs to be considered carefully at a very early stage to avoid an investigation going down the wrong track. If you start on the wrong track, it is really hard to steer it back into the right direction.

Jennie Mansfield

Yes, I agree and a lot to take into account at that very early stage. Let's start with the governance issues you had in mind. What are those?

Dan Ornstein

Particularly for public companies and even for some private companies, it's really critical to ensure an investigation is convened with any applicable corporate requirements. These might be set out in articles, relevant terms of reference of board committees and even applicable policies.

So for example, on whistleblowing, there might be very specific processes and approvals needed to convene any investigative process. You know, who has the power to conduct an investigation, what relevant committees and subcommittees need to be established to make decisions, what notification requirements might arise including even to shareholders or other stakeholders, key parties and the legitimacy of even incurring any costs in connection with an investigation including the hiring of any advisors, forensics or even crisis management specialists.

So for an investigation, in particular involving allegations of whistleblowing that can become even more complex because you have really specific policies as to who might be involved such as a ‘whistleblowing champion’, and sometimes you might need to bypass these people because there could be conflict issues. The very person against whom the allegation is made is the person who's supposed to be investigating it under the policy and I've seen that so we need to work out how to bypass those.

Finally, we need to be always mindful of any regulatory disclosure requirements, such as to financial regulatory authorities. So there is a lot to think about at the offset.

Jennie Mansfield

One of the things that we're often asked right at the beginning of an investigation is whether or not the executive who's the alleged perpetrator should be suspended.

Muriel, what's your answer when you're asked to advise on that question?

Muriel Pariente

In France, the decision to suspend is not automatic and must be handled very, very carefully. Obligations arise such as protecting the employees who made the report, providing work to employees and of course you cannot sanction an employee when you don't yet know all the facts.

The employer can place the executive under precautionary suspension, but it must be proportionate and justified by the circumstances of the allegations. During such suspension periods, the employment contract is not suspended per se, but the executive continues to receive his or her salary depending on the outcome of the investigation and whether it leads to a dismissal or not. It's also very important to maintain contact with the suspended person and keep them informed of the investigation's progress within the limits of confidentiality, of course.

Jennie Mansfield

Thanks Muriel. Clarence, is the position different in Singapore?

Clarence Ding

It's slightly nuanced in Singapore, and that's because suspension has a technical meaning under our Employment Act, and employers are only permitted to suspend an employee for a maximum of one week without the permission of the Commissioner for Labour.

Therefore, the better option is almost always to simply put the individual on either administrative leave or some other paid leave of absence, as permitted under their contract. It's largely a question of semantics at the end of the day, but the practical reasons for taking someone out of the workplace during the course of the investigation would generally be broadly similar to those reasons which Muriel already mentioned earlier.

Jennie Mansfield

So Dan, you were talking about governance and process as two of the three key ingredients. Tell us a little bit about how to work out the substantive scope that should be adopted by a board when it's looking into this type of allegation?

Dan Ornstein

I often feel it's helpful in substance to divide an analysis into what is mandatory to investigate as a result of, for example, legal and regulatory requirements? And then what is in the best interests of the company to investigate?

On the former, the determination of what's mandatory means you've got no choice, you have to investigate it e.g. an allegation potentially of fraud or an allegation of serious sexual harassment. But on the latter, in the best interests, there's often delicate, nuanced decisions to make, balancing what I call the ‘Council of Perfection’. You know, there'll be people who are clamouring to investigate everything and then others who favour what I call a more pragmatic approach, because there's time pressures and there's a need to resolve matters expeditiously considering the damage that could be caused by a really long lingering investigation and a real importance of focusing on what the immediate concerns are.

Jennie Mansfield

Thanks Dan. Moving to issues that may arise when whistleblower disclosures are involved. I have found this can be really difficult where the whistleblower adopts their lawful right not to consent to the disclosure of their identity to the respondent.

It's not an absolute duty to protect that person's anonymity, but all reasonable steps have to be put in place so that the investigation can be pursued. It's always very difficult in terms of procedural fairness when you can't put the allegations squarely to the alleged perpetrator to let them respond.

Muriel tell us about the company's confidentiality obligations in this sort of situation in France.

Muriel Pariente

In France, confidentiality is absolutely fundamental and strictly regulated. The identity of both the whistleblower and the person concerned must remain confidential during the entire process.
For the whistleblower, their identity can only be disclosed in two cases: where they accept it or to judicial authorities.

This protection is particularly important when the implicated executive still holds decision-making power within the organisation. As for the respondent, their identity may only be disclosed once the report has been established as well founded. The company must ensure information integrity and restrict access to authorised personnel only. Anonymity encourages reporting and prevents retaliation against the whistleblower but it makes verifying credibility and maintaining contact with the whistleblower harder throughout the investigation.

Jennie Mansfield

So Clarence, are boards in Singapore required to have the same regard to a complainant’s wish of anonymity?

Clarence Ding

The short answer to that is no. Singapore does not have any overarching whistleblower laws, and boards are not required to comply with such a wish, particularly if it creates hardships in the investigation. The legal position notwithstanding, there is, of course, the potential legal exposure to the victim or the whistleblower if their wishes were disregarded, and, for example, they suffered some kind of psychological or emotional harm as a result. In that case, the company could very well end up being liable to them for breaching the implied term of mutual trust and confidence. If that's the risk, they may want to consider whether or not to have regard to their wishes at the outset.

Jennie Mansfield

There are lots of tricky considerations. Dan, what are your tips, particularly in the UK context, for trying to manage that situation where a whistleblower is asking to remain anonymous?

Dan Ornstein

The UK is sort of somewhere between Singapore and France. In general, there’s no absolute right to anonymity, and sometimes we can look at things from the perspective of different types of investigations; when there's a very general allegation of fraud or where the identity of the person who's making the allegation isn't central to the allegations itself. In these cases, it's much easier to preserve anonymity. But in all jurisdictions where, for example, the person who's making the allegations is often the victim, then anonymity becomes a much greater consideration. And so there, what do we do? We ask people to waive anonymity, even to a limited extent, and in doing so, we sometimes will make explicit that anonymity is likely to be impossible to preserve in factual terms, because the facts and the nature of the allegations are likely to provide a really significant clue as to the identity of the whistleblower.

Jennie Mansfield

Yes, all those things are true, and then I guess Muriel in terms of anonymity, can you use the testimony where it's anonymous, is it admissible in court in France?

Muriel Pariente

Yes, it is. Under French law, companies must define in their procedures how anonymous reports are handled. As for anonymous testimony, it is admissible in court if it's corroborated by other evidence. This was confirmed recently by case law. So if the facts are proven and supported by other elements, anonymous testimonies can be used to support disciplinary action or even dismissal. The French Supreme Court has been clear that anonymous testimony should not be automatically dismissed as long as there is proportionality and the testimony is essential to the investigation.

Jennie Mansfield

What about the situation Muriel, where the senior executive is the subject of the whistleblower complaint? Are there extra challenges for boards to manage there?

Muriel Pariente

When a senior executive is involved, specific challenges arise. Often the senior executive oversees or even controls the whistleblowing process, which creates obvious conflicts of interest. For this reason, in such a case, we typically take over the investigation and conduct the interviews ourselves. The company must also carefully verify that the report meets the applicable legal requirements and may need to request additional information from the whistleblower. It is equally important to inform the whistleblower whether their report is deemed ‘compliant’ and what actions are being taken. Transparency within the limits of confidentiality is really essential.

Jennie Mansfield

Yes, I agree. And I think the whistleblower system has to be set up to make sure that the disclosure is diverted if the person who usually receives it is the subject of that disclosure. There have been some very interesting hiccups that have happened in my experience where that hasn't been done carefully.
And turning to you, Clarence, what kind of issues do you run into when it's a senior executive who's the subject of a whistleblower disclosure?

Clarence Ding

So broadly similar to what Muriel mentioned what we find out here in Asia is that senior executives tend to have a lot of influence and power within the organisation, and oftentimes, they try to use that to either stymie the investigation or to direct the investigation in a particular way, or even to retaliate against the whistleblower or the complainant for having raised the issue in the first place.

Moreover, senior executives are also often the face of the organisation, and any prolonged absence for example, because they were placed on administrative leave, would quickly be noticed and could be picked up by the press. Therefore, speed and discretion is often crucial in such cases.

But also for this very reason, it's often prudent for the board to consider involving external lawyers from the outset, to assist with the investigation and also to act as the bulwark against the senior executives' influence and sway.

Jennie Mansfield

Yes, I agree that sometimes an external appointment is the only way to avoid perceived conflicts of interest and ensure that the investigation is as transparent and as independent as possible.

Dan, there's a bit of a phenomenon that I've seen emerge in Australia, where whistleblower disclosures are used as a defensive measure by executives. Have you seen that too in the UK?

Dan Ornstein

We really do see a lot of whistleblowing allegations being made in the context of someone being defensive and allegations being made then. So we see whistleblowing used as a defensive measure, even by senior executives, particularly in unhappy boards. On that, even where it can be pretty transparent that the allegation is being deployed as a defensive measure, the allegations might still have merit, and despite the temptation, that does not absolve a company from an investigation. Rather, those allegations still need to be investigated in accordance with company processes.

Jennie Mansfield

So we're nearly out of time. Can I invite each of you to share some final thoughts? Dan, anything from you?

Dan Ornstein

I'd reiterate the importance of thoughtful and careful planning at the outset. When things are urgent, there's a temptation to rush, but if you do that, you can get things off on the wrong foot. Scoping an investigation is absolutely critical.

Jennie Mansfield

Muriel, thoughts from you?

Muriel Pariente

The key takeaway is that internal investigations are not legally mandatory in France. But they remain the only truly effective tool for handling reports properly because a well-conducted investigation protects the company on several fronts, including compliance, reputation and litigation risk whether from the reporting employee if they believe they were not sufficient protected, or from the respondent if they challenge a potential dismissal based on the alleged misconduct.

In addition, in light of recent developments in case law, companies that fail to conduct an investigation where circumstances require it may still incur liability for breaching their duty of safety, and it's a very important obligation in France, because you can be prosecuted for a criminal offence.

Jennie Mansfield

And Clarence, any final thoughts from you?

Clarence Ding

I think, just circling back to the point that Dan made earlier around triaging the issue at the outset, I think that's really important. What we tend to see in Singapore in particular, is the risk that the investigation tends to creep in its scope, and where you are looking at a fairly isolated issue at the outset, you find that new issues that are uncovered tend to heap on to the first issue, and then it becomes a really complex matrix investigation after that and sometimes unnecessarily so when the issue can be dealt with fairly discretely. So I think keeping boards honest by having clear terms of reference is crucial when conducting an investigation.

Jennie Mansfield

Yes, that resonates very strongly with me Clarence, in terms of some of the issues that come up here as well. We could swap war stories all day about investigations, but that's all we have time for today.

I'd like to thank Clarence, Muriel and Dan for their time today. It's been really interesting to hear perspectives and experiences from different jurisdictions where we practice. And thank you to our audience for listening. We hope you found this episode informative.

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