18 Jun 2019

The effect of the #metoo campaign continues to ripple across industries. The recent International Bar Association Us Too publication reported on bullying and harassment within the legal profession and concluded that more than half of legal professionals in the UK have been bullied, whilst 38% of women and 6% of men had experienced sexual harassment.

Whether you work in the legal sector or you’re in a different industry, if you receive complaints of bullying and harassment within your workplace it is important that you carry out an appropriate and considered investigation. Set out below are four key guidelines.

1. Appoint your investigator

  • One of the first things to do is to decide who is going to investigate and, in particular, whether you should manage the investigation internally or if it would be more appropriate to instruct an external third party. Suitable investigators might include an HR consultant, law firm or barrister or a non-executive director.
  • The individual identified to conduct the investigation will typically depend on the size of your organisation, the nature of the allegations which have been made and the seniority of the person accused.
  • Importantly, the investigator must have the credibility to investigate the allegations effectively – relevant to that will be his or her experience, seniority and neutrality. If the accused is very senior it might be that the most appropriate investigator is an external third party who can challenge individuals within the business without worrying about the impact it might have on their own position and career.

2. Create an investigation roadmap

  • It will be important to ensure that there is clarity as to the allegations which are being investigated. If you’re unsure what the allegations are, you may need to have a further meeting with the complainant to make sure you properly understand the position.
  • Once you understand the allegations, it’s worth expressly identifying the facts which need to be established and the evidence which needs to be collected. There are likely to be two parts to the investigation, one around gathering “hard evidence” such as emails, instant messenger chats, text messages, voicemails or any security camera footage and the other around witness evidence.
  • We recommend creating a “roadmap” document at an early stage to ensure that the investigation stays on the right track and all relevant material is collected. In our experience, this type of document will typically articulate the allegations being investigated and the steps that will be taken in the investigation, including a list of individuals to interview and documents to be reviewed.

3. Treatment of the complainant

  • In relation to managing the complainant, it is most important that you treat them sensitively and put in place support to help them. They may feel uncomfortable in the workplace whilst the investigation is ongoing and some employers will give a complainant the option of staying at home, either working or on a form of paid or unpaid leave.
  • You may also have an employee assistance programme or other form of support you could make available to a complainant. If you have such a programme in place, it’s important that the complainant is aware of it.
  • Even if you don’t have a formal programme, you should ensure that one of your HR team or a suitable manager is available to lend support during the process.

4. Treatment of the accused

  • As an employer you owe certain duties to the accused, including a duty to maintain the relationship of trust and confidence. One possible outcome of an investigation is that there will be no case to answer and, with that in mind, it’s important that the employer has taken steps to minimise the impact on the accused and his or her reputation during the investigation. A key part of doing so is keeping the investigation confidential and conducting it on a “need to know” basis so far as is possible.
  • Once the investigation stage of the process has concluded, depending on its findings, you will need to decide whether or not to proceed with disciplinary action and, if so, what process and sanction is appropriate in the circumstances.
  • It is possible that the accused may not be dismissed and could instead receive a form of warning. If they are going to remain in employment having had a finding of bullying or harassment made against them, what measures can you put in place to help prevent a similar complaint being made in the future? Such measures could include coaching or training, as well as restrictions on drinking or socialising with work colleagues, depending on the nature of the misconduct in question.

Getting this type of investigation wrong will impact adversely on the individuals involved, as well as the organisation as a whole. It is therefore critically important that employers approach any harassment complaints carefully and deal with them judiciously.

We regularly work with clients who are carrying out these types of investigation. If you’d like more information about how we can help your organisation, please contact Daisy Jones or your usual Fox Williams contact.

Further information

If you have any questions in relation to this topic, please contact a member of the employment law team at Fox Williams or speak with your usual Fox Williams contact.

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