Trend towards firms hiring lawyers to conduct sexual harassment investigations

As we highlighted last week, the Labour Party, now in government, has committed to strengthening protection for victims of sexual harassment in the workplace and those who call it out. For employers it means the handling of complaints takes centre stage with ever more scrutiny on the fairness and impartiality of the process. We’ll speak to an employment lawyer about the trend away from handling investigations in-house. 

A reminder. The Worker Protection (Amendment of Equality Act 2010) Act 2023 is due to come into force in October, imposing a new positive duty on employers to take ‘reasonable steps’ to prevent employees experiencing workplace harassment. The Labour Party previously backed the legislation and has promised more to come. In May, as People Management reported at the time, Labour’s deputy leader Angela Rayner announced that if they won the election they would legislate to protect interns and volunteers from sexual harassment. 

Labour also promised to strengthen protection for whistleblowers of sexual harassment at work. This was first discussed back in October last year when they announced that Marina Wheeler KC had been appointed as Labour’s adviser on protecting women against workplace harassment tasked with looking at how to make it easier for workers to blow the whistle on bullying and discrimination at work. 

One of the key issues at the centre of this debate is the role of HR in balancing company reputation and employee wellbeing. Back in March the Treasury Committee published its final report on its Inquiry into Sexism in the City. Notably, MP’s made a sweeping criticism of HR professionals saying they are too often ‘focused on protecting firms rather than victims’ and that ‘allegations were often not taken seriously or investigated properly by firms.’ As People Management reported at the time, respondents to the inquiry had an ‘overwhelmingly negative view’ of the effectiveness of companies’ internal whistleblowing procedures in dealing with allegations of harassment, with many citing a lack of action from HR departments. As the report puts it: ‘Many thought that human resources departments within firms were focused on protecting the firm rather than the victims of sexual harassment.’

At paragraph 157 of the report the Committee highlights the risk to reputation if cases of sexual misconduct are not handled properly, as well as the important role that senior leadership has to play, and the need for investigations to be truly independent. They say:

‘Several high-profile cases in 2023 show the potential negative impact on a firm if it fails to tackle sexual harassment by its staff. Senior leadership and boards need to take ownership of this issue and ensure that processes for handling complaints result in thorough investigations. Firms should consider whether their human resources departments are able to fulfil this function, or whether there is a need to establish a separate, more independent process that reports directly to the senior leadership or board.’

In fact, a number of our clients have recognised that problem and have moved towards the more independent process which the committee was recommending. So, engaging their lawyers to conduct the investigation stage rather than one of their own managers which would be the usual choice in a misconduct case. So, let’s hear more about 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.