Organisations are regularly faced with grievances or allegations of wrongdoing that need prompt and thorough investigation. Getting it wrong can result in costly claims and damage to an organisation’s reputation. Here are our key points to consider for employers conducting investigations as part of a formal HR process:
Policy and procedure – identify (and be clear about) the HR policy and procedure you are following (especially if there are potential overlaps). For example, if an employee raises a grievance which deals with wider regulatory matters, will this be dealt with under your grievance and/or whistle-blowing procedure? Ensure that policies and procedures are applied fairly and consistently
Appoint an appropriate investigator – ensure independent investigators with sufficient expertise, training and experience are appointed. An investigator will typically be of certain seniority. Always consider whether an external investor (such as a law firm) might be more appropriate, especially where the subject matter is particularly sensitive and/or involves senior level employees
Scoping and framework – set out a clear scope and framework for the investigation. In particular give thought to the allegations/matters being investigated, what format the findings should take, and whether the investigator is to make any recommendations to the decision maker. Individuals involved in investigations should clearly understand their role and remit. However, remember things can change and the scope and framework might need to be updated
Confidentiality – ensure matters are dealt with as confidentially as possible. Only share matters to those who need to know and consider whether information can be shared in a more limited away (for example, just providing relevant extracts of documents rather than the whole thing)
General factors – for employers to remember and relay as applicable:
interrogate the evidence and always look for corroboration
understand the burden of proof to be applied (“case to answer” for investigations and “balance of probabilities” for hearings and decisions).
ensure decisions are made on facts and evidence and not speculation
keep careful paper trails and accurate notes
make sure everyone is aware that drafts of the investigation report could become disclosable in legal proceedings. The language and the tone of the report and any recommendations should also be appropriate
if an investigation touches upon criminal or regulatory matters, consider whether there is any need to make an external report.
Download our workplace investigations factsheet
Organisations are regularly faced with grievances or allegations of wrongdoing. Getting it wrong can damage an organisation’s reputation and result in costly claims.
Employers are subject to a new duty to take reasonable steps to prevent sexual harassment at work with effect from 26 October. This is a steep change, as employers must now proactively make efforts to address such behaviour. If a claim of sexual harassment is established, a Tribunal will have to consider as a matter of course whether the employer took suitable steps and, if not, any compensation may be increased by up to 25%.
Between the introduction of this new duty, the publication of related guidance from the Equality and Human Rights Commission (or ‘EHRC’), and the approaching wave of work-related social events as the festive period draws nearer, there has never been a more opportune time for employers to act.
In this article we share five practical ways to embrace this important change to the law.
1. Introduce meaningful policy
Many employers will have longstanding policies to address harassment. All too often, however, we see ‘one-size-fits-all’ policies which are unlikely to be sufficient to meet the new and more demanding duty.
Your policy should take into account the specific risks and challenges posed by your workforce and working environment. For example, do you have risk factors such as lone or night workers, or colleagues in significant power imbalances? The EHRC guidance lists a host of potential matters to consider, much in the same way that a health and safety assessment might be undertaken. It may be beneficial to discuss matters with colleagues, to gain a better understanding of the interactions faced by workers and employees.
Implementing thorough and accurate policies is likely to be more than a simple box-ticking exercise and having these documents available is important in ensuring that all members of the workforce understand what is expected of them when it comes to preventing sexual harassment. A well thought out and articulated policy will serve as valuable evidence that you have seriously considered your duty and taken steps to comply with it.
Generally, a well-drafted policy should not stand isolated from your other policies, and this an opportune time to review things generally to ensure that compliance with this duty permeates your culture.
2. Implement consistent training
Having a policy in place is a crucial first step, but making sure that staff and management alike have received – and continue to receive – training on its content is essential to stand the strongest chance of making meaningful change and demonstrating compliance with the duty.
An effective training programme should cover: what constitutes sexual harassment; how to spot it; and how to appropriately respond to instances of sexual harassment, including escalating where appropriate. We are very familiar with providing external training and welcome any queries about either introducing or delivering a suitable programme.
It is worth bearing in mind that different roles are likely to require different training. For example, senior management may need a stronger awareness of how they will conduct investigations and risk assessments, whereas training for more junior colleagues may be best focussed upon reporting procedures. Truly embedding this new approach to sexual harassment will require education throughout the workforce.
3. Set a framework for investigations
An investigative framework is another essential mechanism to make sure that complaints of sexual harassment are handled in a manner which is effective, sensitive and compliant with the law.
In the unfortunate circumstances where you need to investigate allegations, a robust plan and an informed group of potential investigators will be vital to ensure that matters are progressed swiftly and without confusion. Key management figures should know what their role is vis-à-vis any investigation and how to support it effectively.
Under the spotlight of this new preventative duty, where an allegation of sexual harassment requires investigation, employers should conduct investigations through a lens of both fact finding and with a view to reflecting and learning, so that future occurrences of sexual harassment can be mitigated.
4. Actively manage internal processes
Strong policies, effective training and a clear investigative framework will do much to meet the challenge of the new preventative duty. However, the duty is an ongoing one and treating compliance as a one-time exercise is unlikely to suffice. Workplaces are ever-changing and active management will be necessary.
You might consider an annual review of internal processes, to reflect upon whether any changes to your workforce or workplace, or lessons learnt more generally, should change your approach. To make that meaningful, accurate records should be kept of incidents that have arisen and how they have been handled, as well the training that has been provided and to whom.
5. Read the guidance
Making these enduring changes is no small task. However, while we await case law, the EHRC published detailed and helpful guidance in September which is likely to hold considerable sway. The full guidance is available to read here.
The guidance helpfully provides case studies showing how the duty will apply in given scenarios. In addition, it explains legal terminology to help employers navigate the new requirements. Most notably, the guidance goes a significant way towards clarifying the ambiguity of what may be deemed to be ‘reasonable’ steps in a given workplace, although much will still depend on the context.
If you have any queries about how to implement the new duty to prevent sexual harassment, or would like assistance with policies, training or investigations, please do get in touch with our team.
