Handling investigations – independent complaints panels: fair or flawed?

Blog

01.09.2020

In another break from coronavirus-related news, we consider the Houses of Commons’ new Independent Expert Panel (IEP) and its relevance for other employers.

Background

Dame Laura Cox’s damning independent report “The Bullying and Harassment of House of Commons Staff” (15 October 2018) found “a culture, cascading from the top down, of deference, subservience, acquiescence and silence, in which bullying, harassment and sexual harassment have been able to thrive and have long been tolerated and concealed”.

One of her recommendations was that steps should be taken to ensure that the process for determining complaints of bullying, harassment or sexual misconduct brought by House staff against MPs is an entirely independent process, in which MPs play no part.

In a post #MeToo and BLM world, we can certainly see the benefits of an independent complaints panel.

The Independent Expert Panel

The Independent Complaints and Grievance Scheme is Parliament’s mechanism for handling complaints of bullying, harassment or sexual misconduct. In the case of complaints against MPs, complaints are allocated to an external independent investigator who produces a report detailing their findings. Then, the Parliamentary Commissioner for Standards (PCS) reviews the report and determines whether or not the complaint is upheld.

The PCS also has some discretion to determine sanctions. However, it is beyond their remit to determine sanctions in cases where the strongest sanctions (suspension or expulsion) may be required. Currently, sanctions in such cases are determined by a parliamentary committee. On 23 June 2020, MPs voted in favour of establishing an IEP to determine sanctions in such cases instead. As well as determining sanctions, the IEP will also hear appeals against the PCS’s determinations and against their own decisions (with different sub-panels convened for the first decision and any appeal). The IEP will be made up of eight individuals independent of Parliament, recruited for their judicial experience or proven ability to assess evidence and reach impartial conclusions. It is therefore a significant departure from the existing system.

Why is this relevant for other employers?

The House of Commons is not the only organisation which has been grappling with workplace culture and the spotlight that has been focussed on handling allegations of bullying, harassment or sexual misconduct since the emergence of #MeToo. In previous blogs, we have explored “bullying and harassment in the virtual workplace”, “immediate steps to take when a worker alleges harassment” (here) and the EHRC Harassment Guidance (here).

Employers could consider adopting an IEP-type approach by instructing an independent investigator and complaints panel to consider allegations of this nature, whether to make the substantive decision and/or to determine sanction alone. So, what are the pros and cons?

Pros

Victims will have their complaints determined by panel members who are wholly independent from their colleagues, HR and the person that they are accusing. This may give them more confidence to speak out about inappropriate behaviour, which in itself will help to create a safer workplace where issues aren’t covered up or ignored, thereby helping to achieve a “speak up” culture.
Some individuals (rightly or wrongly) can be nervous about internal processes managed by HR as a result of a perception that HR will not be “on their side”, or because they have raised matters with HR in the past without effect, or where the HR function may be seen as weak, with no power to do anything. Equally, in some cases, such as those involving #MeToo issues, employees may be too embarrassed or worried about their reputation or about not being believed to pursue their case via normal HR routes. Using an employer’s normal processes, employees may also feel too inhibited to raise concerns against the most senior people in the business – an independent investigation and panel may help address this issue.
Those accused will also have assurance that there will be a fair process, since again, because of its independence, the panel will not be known to any party involved.
It might be cathartic for victims to feel that they have had their “day in court” in a sense and that their voices have been heard by an impartial “judge”. The fact that there is independence and hopefully more confidence in the process may, arguably, mean that employees are less likely to challenge decisions through appeals or the Employment Tribunal (though some will always do so of course).
There are various benefits to choosing both independent investigators and panel members with specialist expertise in determining allegations of bullying, harassment or sexual misconduct. They will be familiar with the relevant legislation and guidance, experienced in handling such cases and may produce more robust decisions. They might have honed the soft skills to communicate effectively and sensitively with victims, those accused and witnesses. They might better understand how to navigate more complex issues, such as investigations and decision-making where there are parallel criminal or regulatory investigations or where a victim of, for example, a serious sexual assault is also receiving counselling. They might also be well equipped to spot other issues quickly, such as when reasonable adjustments may be necessary in a process.
Instructing an independent complaints panel might send a clear message that conduct of this nature will not be tolerated. This could be an important piece in a jigsaw of measures to promote a positive workplace culture.

Cons

Some employers may be concerned about “out-sourcing” decision-making.
Employers may lose the ability to manage an independent complaints panel, unless there are strict terms of reference and a clear and transparent process and methodology by which they investigate cases and make decisions as a panel.
Relatedly, independent complaints panels can be expensive and – in order to maintain their independence – there will be a limit to the extent to which employers can martial the scope of their investigation and therefore costs. (Though again, in our experience, this is manageable with a methodology, terms of reference and clear budgets.)
Victims will often have (and raise) concerns that an independent complaints panel is not truly independent if it is paid for by the employer. The answer in these cases is that independence is built into the relationship through the contract, leading to contractual independence. Equally, the appointment of the investigator and panel should be transparent and defensible on this front too.
Some people might say that an independent complaints panel will not understand enough about the culture and nature of an organisation to make a fair decision.
There would be a certain amount of groundwork and upfront cost to get such a system up and running, with the suite of HR policies requiring significant amendment. On an ongoing basis, it would absorb some time of the HR team to manage the process, though it would probably overall lead to less time and work for managers in the business, since investigations and complaints handling is completely taken out of their hands. HR may also be able to rely on the fact that the investigator and panel are experienced, so HR may need to spend less time supporting them than they would managers in the business.
Careful thought will need to be given to various procedural issues. For example, how would the panel be staffed, and would they be instructed on a one-off basis or for a particular term of office? Who would provide administrative support to the panel? To whom would someone appeal a decision of the panel? How will the process be monitored and quality assured? Many of these questions would depend on the size and resources of the employer; the number of workers; the average number of cases in any given year; and whether the employer is currently experiencing anything like a #MeToo moment or wave of racial harassment cases post-BLM.
Independence should not lead to ignorance. Employers should ensure they get reliable information from the panel at the end of the process, so that patterns of poor behaviour can be identified and addressed.

Ultimately, there is no “one size fits all” and what is right for one employer will not be right for another. There might also be a case for not using independent investigators and complaints panels routinely but to bear the option in mind should particularly serious and challenging allegations arrive at your door. In the right circumstances, and used in the right way, they can be a very effective tool.

Our team has extensive experience advising on the conduct of investigations, please see our Investigations Brochure for further information.

If you require further information about anything covered in this blog, please contact Maria Strauss, Alice Kendle, or your usual contact at the firm on +44 (0)20 3375 7000.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.