Allegations of sexual misconduct pose a serious reputational and business risk for employers and they can have lasting implications for the individuals involved. So who should conduct the investigation? We’ve seen a growing demand for lawyers to take on that role – we’ll ask an employment lawyer about that trend.
Complaints of sexual harassment are often complicated and tricky for employers to handle but investigating them properly is essential for two main reasons. First, because it means that the employer can take action to protect its employees – after all, you owe a duty of care not only to the alleged victim but also to the rest of your staff who might be affected. Secondly, you need manage the risk in a way that avoids it ending up in the employment tribunal or on the front pages of the press.
When it comes to process, there is a huge amount of case law out there from which lessons can be learnt, and the employment tribunals have handed out lots of guidance over the years. Key points include:
- Ensuring that the investigator is properly trained and has appropriate experience of conducting investigations – often the stakes are very high, involving very senior people, so trust in the person conducting the investigation is vital
- Ensuring that the investigator has a genuinely open mind and is thorough – these cases are often sensitive and complex and require digging deep, beyond the superficial evidence
- Ensuring that the person making the complaint is treated appropriately and sensitively – after all, they are not the one under investigation
These may seem obvious points but the case law is littered with examples of employers getting this wrong and, if the investigation is flawed, the chances are the rest of process will be flawed. Given that risk, we have noticed that employers are more inclined to trust their lawyers to conduct the investigation so let’s consider that. Earlier I spoke to employment lawyer Sarah Munro who has noticed the trend:
Sarah Munro: “It’s an interesting development really that we're seeing, Joe. In the years I've been doing employment law we have helped clients with lots of complex and sensitive investigations that they have carried out within their organisations. We've been on hand to help guide them through legal issues and help ensure that the investigations they're conducting are as fair and reasonable as possible so that they are used properly to defend any future employment tribunal claims. But recently clients have been asking us, can you help? Can you, as a lawyer, come into our organisation and conduct these investigations for us?”
Joe Glavina: “Why are clients asking you to conduct the investigation rather than handle it internally themselves?”
Sarah Munro: “It’s a fair question and something that we've really had to think very carefully about before embarking on conducting any investigations for an existing client. The reason why we think it is something that clients are asking us to do is because they are nervous when it involves very senior individuals in the organisation, very serious complaints, potentially of sexual harassment, or other forms of discrimination. They want to be as protected as possible and in order to do that they feel having a lawyer in to help with that is the way forward. We need to make sure that with an existing client and the relationship we have that we don't overstep our existing client relationship and that's where we can put measures in place, and have done very successfully, where the lawyer who has the relationship with the client stays and advises the client as he or she would have done in the past, but a different lawyer from perhaps a different office, somebody who has not been on that claim team, they can step in and conduct an impartial investigation as a lawyer and therefore we can really assist a client in a helpful way where we have somebody impartially looking at it, and then the existing client relationship continues with one of our lawyers who has a relationship advising on any issues that crop up.”
Joe Glavina: “Pinsent Masons has access to its own D&I consultancy which could, in theory, help with this kind of work, Sarah. So you’ve got the consultancy and legal input, potentially.”
Sarah Munro: “Yes, Brook Graham, as you say, our in-house D&I consultancy, can help and will help with investigations. Sometimes the nature of the investigation might lend itself more to one of the Brook Graham consultants conducting the investigation and, again, Pinsent Masons may advise on the legal side of it and Brook Graham may focus on an investigation that has a more cultural aspect, and less of the legal aspects to a complaint. Brook Graham also can really help after an investigation. So, perhaps the investigation has uncovered a real issue with bullying and harassment, for example, in a workplace. Brook Graham have an excellent track record of going into organisations and really helping change an organisation's culture and make it better, and therefore acting really in a preventative way to stop complaints, like the one that has been investigated, cropping up again in the future.”
Joe Glavina: “Why do you think we have seen a rise in the number of questions we’ve had on this, Sarah?”
Sara Munro: “The increase in the number of questions we've had on this, I think, stems from the fact there has been an awful lot in the press about whistleblowing, and investigations, and sexual harassment in the workplace, and I think employees are becoming more confident in speaking up and raising concerns. This then results in an organisation having to deal with more of these complaints either through their normal grievance channels, or whistleblowing complaints, and they need to have that resource within their organisation to deal with them all. We are seeing an increased number of complaints, which results in an increased number of investigations, and often investigations into serious issues, and at a very senior level, and that is why organisations are looking externally to see who else can help not only from a resource perspective but also to ensure that the investigation covers all legal angles, ensures the reputation of the company remains intact, but also very importantly, gives both the person who's made the complaint and the person accused of potentially some very serious allegations, that they feel they've been fairly heard and have had a thorough and detailed investigation into the issues that have been raised.”
If you would like help with an investigation, or you’d like to know more about how and why a lawyer might help or, indeed, a D&I consultancy like Brook Graham, please do contact Sarah. Her details are there on the screen for you.
