Against the background of the increased awareness of the unacceptable nature and scale of harassment raised by the #Me Too Movement, the findings of a recent Parliamentary Committee’s inquiry that some employers are failing to investigate harassment complaints, properly, or at all, have come as a shock when so many employers publicly state a commitment to diversity, but yet such poor practice exists.
Failing to investigate a complaint can have serious consequences. It not only damages an organisation’s reputation, but it can also have serious legal consequences. So perhaps now is a good time to remind employers of the potential negative legal outcomes, while at the same time highlighting the best practice principles for handling an investigation.
Failure to investigate harassment complaints has come to prominence because of two recent events:
The Women and Equalities Committee have just published a report on the use of non-disclosure agreements (NDAs) in discrimination and harassment cases calling on the Government to end the culture of covering-up allegations. The inquiry found that some employers fail to investigate allegations of unlawful harassment properly – or indeed at all – and often use NDAs to avoid the need to conduct a proper investigation and issue findings in response to a complaint.
Published just after the results of the Committee’s inquiry, a report commissioned by Office for Students, the higher education regulator for England, has recommended that universities should bring in specialist staff to independently investigate sexual harassment against their students.
It is hard to understand why, when faced with a harassment complaint, an employer would not conduct a full investigation. As far back as 1992, the EU Commission published a recommendation on the protection of the dignity of women and men at work which advised that where harassment is alleged, an independent and objective investigation must take place (see the key principles below). This element is a cornerstone of best practice featuring in advice from Acas and the EHRC in its Employment Code of Practice, and a failure to investigate can have legal repercussions.
The Acas statutory Code of Practice – Disciplinary and Grievance procedures, requires that when a grievance is raised employers should arrange for a formal meeting to be held without unreasonable delay and that consideration should be given to any investigation that may be necessary. It is difficult to contemplate any harassment complaint which would not require further investigation and a failure to follow the Code without good reason can result in a 25% uplift to compensation in tribunal.
A failure to investigate a grievance can also have further damaging financial consequences. For example, the lack of an investigation opens the door to a claim that the complainant has been subjected to further detriment because of the employer’s failure to look into the allegations. In addition, it could lead to an increase in an award for injury to feelings because the failure to act has heightened the degree of hurt and an award for aggravated damages where the lack of action has made the situation worse.
Employers need to have a clear policy outlining the procedure that should be followed by employees who believe they have been harassed and to whom they should complain, confirming that that allegations will be investigated and dealt with seriously, speedily and in confidence. The best practice principles applying to the investigation phase are as follows:
- It is important to ensure that internal investigations of any complaints are handled with sensitivity and with due respect for the rights of both the complainant and the alleged harasser.
- The investigation should be seen to be independent and objective. Those carrying out the investigation should not be connected with the allegation in any way.
- Strict confidentiality must be maintained throughout any investigation into an allegation.
- Every effort should be made to resolve complaints speedily – grievances should be handled promptly and the procedure should set a time limit within which complaints will be processed.
- Both the complainant and the alleged harasser should have the right to be accompanied and/or represented, by a representative of their trade union or a colleague.
- The investigation should focus on the facts of the complaint
- The complainant must be given the opportunity to set out their allegations in full.
- It must be recognised that recounting the experience of harassment is difficult and can damage the employee’s dignity, so a complainant should not be required repeatedly to recount the events complained of where this is unnecessary.
- The alleged harasser must be given full details of the nature of the complaint and the opportunity to respond.
- Where it is necessary to interview witnesses, the importance of confidentiality should be emphasised.
- A complete record of all meetings and investigations must be made and retained.
The need for the investigation to be independent is of paramount importance as it must not only be fair but be seen to be fair. This means that the investigator must be independent so there can be no accusations of bias. Sometimes employers are tempted to appoint an investigator from another department, or from another part of the business, or even from their legal advisers. But would this be seen to be ‘fair’ when in each case there is a clear association with the employer in some way. Yes, it may involve extra cost to appoint an independent investigator who has no known association with the business, but it is scrupulously fair.
The case for conducting independent investigations into harassment complaints is clear. No organisation that truly embraces diversity can afford to be accused of cover ups and the legal consequences of failing to investigate can be very costly. Adopting the best practice principles when conducting investigations provides a framework which benefits all the parties involved, protecting confidentiality and ensuring there can be no allegations of ‘sweeping it under the carpet’.
Partner, Simons Muirhead & Burton Employment Team