Category Archives: investigation

Good Lord! The Case for Conducting A Thorough Sexual Harassment Investigation

sexual harassment

“Image courtesy of Ambro /”

The case of Lord Rennard, a key figure in the Lib Dems party, accused of alleged sexual harassment shows the importance of conducting a thorough sexual harassment investigation and carefully managing the fall out from what is often a very fraught situation.  This is particularly difficult for the Lib Dems as Lord Rennard is a high profile figure in the party having been inaugural in its creation.

The outcome from the investigation concluded there was insufficient evidence to show that Lord Rennard did actually sexually harassment three women as they claimed despite the adage that given there are three complainants there could be no smoke without fire…..

Initially it seemed that Nick Clegg wasn’t going to take much action, but now seems to have bowed to external pressure.  Lord Rennard has been asked to apologise to the women concerned and has refused to do so; he has therefore been suspended from the political party and is seeking legal action.  Now the Lib Dems are conducting a further investigation into Lord Rennard allegedly bringing the party into disrepute for failing to apologise. This allegation is usually considered to be gross misconduct and carries the penalty of summary dismissal if proven on the balance of probabilities.

With any sexual harassment investigation it is important to conduct the process as quickly and as sensitively as possible.   Inadequate handling of a situation in employment can lead to a resignation claiming constructive dismissal and discrimination in an employment tribunal.  Many people are reluctant to make a formal complaint in the workplace and it takes courage, so when they do so, the matter needs to be handled well.  Any complaint should be in writing as a grievance for the employer to take action.  Thought needs to be given as to handling the personalities involved.  If the individuals work closely together it might be necessary to put both parties on garden leave whilst an investigation is completed.  Support and counselling should be available for both parties.

If there are no witnesses to the allegation it is really important to evaluate the evidence gained. Consideration should be given to how detailed is the evidence for each individual, what is the conduct of the individuals and their willingness to contribute responses when asked, are there any discrepancies and can these be investigated further, are there any explanations for particular inconsistencies in evidence reasonable, are the explanations credible in the context in which they are given, does any explanation given by an individual detract from their evidence, have there been other complaints, etc.  It can often be difficult to prove either way with one person’s word against another.  Circumstantial evidence may need to be used.

The full facts in the form of witness statements should be gathered from the complainant, the alleged perpetrator and any witnesses.  The interviews should be conducted sensitively and confidentially and the witness statements should be signed and dated.

If the complaint is not upheld the complainant needs to be advised of the right to appeal.

The main issues following an investigation are then reintegration and a possible backlash.  HR may lead on reintegration or alternatively it can be a manager. Generally it should be the alleged harasser who should be relocated rather than the complainant, however, this could be difficult in a small company.  Mediation might be a useful alternative to reduce conflict.

It is important to watch out for any backlash if relocation is not possible.  If the alleged harasser is in a position of power there might be unfavourable treatment of the complainant, which is victimisation, a form of discrimination for having raised a complaint and pursuable in an employment tribunal.

Having clear policies in place that cover equal opportunities and harassment are essential to provide clear guidelines to all employees as to how they should conduct themselves in the workplace.


How to Undertake a Reasonable Investigation

The recent case of Stuart v London City Airport has highlighted the importance of undertaking a reasonable investigation before an employer takes action.  In this case the employer failed to investigate the conduct of an employee who the employer considered had stolen goods.

The employee was a grounds services agent who entered the duty free store within the airport to buy some presents.  Whilst he had the goods in his hand he got involved in a conversation with a colleague which took him outside of the store without paying for the goods.  He was then apprehended for removing the goods without payment.  A store assistant had told the store manager the employee concealed the goods under his jacket before he left the store, however, they were never interviewed as part of the internal investigation or called to give evidence at the employment tribunal.  The employer did not consult the CCTV footage nor interviewed the staff member who had beckoned the employee outside of the shop in order to have a conversation.
The employment tribunal found that dishonesty had occurred but the claimant appealed and the EAT found that the employer should have carried out a fuller investigation given the gravity of the situation before making a decision.  The investigation was not considered reasonable.  The outcome from the EAT was that a new employment tribunal hearing should take place to determine how far the claimant contributed to this dismissal.
The purpose of an investigation is to establish the facts of a case.  This can be in the case in instances related to a disciplinary, bullying harassment, grievance and even sickness absence. 

It is always best to make an initial plan by deciding how best to gain the evidence. This should include who should undertake the investigation, who should be interviewed together with what documents and evidence need to be obtained.
In determining who should undertake an investigation, ideally the investigators should be totally independent from the situation and the individuals involved.  Ideally there should be two investigators, one person to ask the questions and the other to take notes as it so difficult to take and take notes at the same time.  In a large organisation this can often be an independent manager supported by an HR representative.  In a small organisation this can often be difficult due to manpower resources, but it is preferable that senior members of staff undertake the investigation.  It is best to provide investigation training so that inexperienced investigators understand what to look out for and how to question witnesses.  As an alternative it is possible to draft the assistance of specialist investigators or an experienced independent HR consultant.   Speed is of the essence to ensure that evidence isn’t destroyed or key facts forgotten.  It is always important to have an open mind.
The first step would be to interview the employee at the centre of the investigation.  With a disciplinary situation it would be the employee whose conduct is in question or with a grievance it would be the employee who has submitted the grievance.  The interview should be held in private with confidentiality at the forefront of proceedings.   It is a good idea to allow the employee to be accompanied even at this stage particularly if detailed in company procedure.
Questions that tease out the main issues should be asked, ideally using open questions (who, what, when, where, how, why) to elicit information).  If there is a note taker they need to remain alert to capture the answers; it can sometimes be difficult to concentrate.  Unless they have fast shorthand skills, it is impossible to capture dialogue verbatim therefore it should be done as accurately as possible.  It might be necessary to ask for the dialogue to slow down so that important points are  logged.  Nevertheless, questions that require a yes or no answer should be captured.  It is important to remember never to put words into the mouth of the person being interviewed.   A set of questions can be prepared before the interview that can be supplemented as the interview proceeds. 

It is a good idea to take regular breaks which help take stock of information gathered and to refresh the mind.  Some interviews can go on for hours so breaks are vital.  Tea and coffee should be available.
All witnesses should be interviewed the in same manner.  If fresh witnesses or new names are mentioned as the interviews take place it is important to interview these as well. It might also be necessary to interview witnesses more than once if new facts or discrepancies arise. 

The whole point of the exercise is to leave no stone unturned to ensure that there is ultimately no miscarriage of justice.
All interview notes should be neatly typed up and ideally statements signed and dated by individual witnesses.  With some large organisations an overall report is produced to decide a case to answer and/or to inform a hearing.
An investigation should be reasonable, but where an employee’s job is at risk and an employment tribunal claim possible, it is important to ensure that a thorough job is done. 

Undertaking a Disciplinary Investigation

It was reported recently that a union member was sacked by Salford Council for assault.  He went to an employment tribunal and won his case for unfair dismissal.  The tribunal found that the council had failed to establish that an assault had taken place.  In fact the employee had merely brushed past the manager with whom he was having a heated disagreement in a narrow corridor.
Such a case highlights the importance of rigorous investigation before taking disciplinary action particularly dismissal.  All witness should be thoroughly interviewed at least once if not several times if discrepancies come to light during the investigation process.  They should be interviewed individually using a question and answer format.  Alternatively they should be asked to provide their own statement which should be done whilst supervised.  All relevant paperwork/evidence should also be collated.  The process can be conducted by managers or, as it can take up time, by an experienced HR consultant.  Sufficient time should be taken to ensure the investigation is completed well and a comprehensive report written up.  The investigation forms the basis of whether to go forward to a disciplinary hearing or not.
It should aim to leave no stone unturned and, if done correctly, can prevent a costly miscarriage of justice.