Investigating sexual or racial misconduct in the workplace – top tips

In the wake of the recent global Black Lives Matter and #MeToo movements, organisations across many sectors have needed to respond appropriately to specific allegations and complaints of racial or sexual harassment and misconduct in the workplace.

Some organisations are being proactive in response to these movements and are embarking on equality reviews and audits, reflecting carefully on their handling of past cases to look for lessons learned, and others are having to respond to queries from regulators. More reactively, there are many organisations embarking on complex investigations in response to specific allegations.

Workplace investigations can be tricky at the best of times, but the added sensitivity and often deeply personal nature of investigations into either racial or sexual harassment or misconduct can add additional layers of complexity. The guiding principles for the organisation in handling such cases should be the welfare of the staff involved and the need for a fair process.

Top tips for sexual or racial misconduct investigations

1. Always refer to relevant guidance in the area, such as the EHRC technical guidance on sexual harassment, ACAS step by step guidance, as well as your own internal policies and procedures. We encourage you to read all of these documents at the outset and stay close to these principles throughout an investigation;
   
   
2. Risk assess the situation and consider whether you need to put in place appropriate safeguards to prevent the risk of ongoing harassment, or even victimisation, of the complainant or witnesses. In practice, if there appears to be substance to the allegation, once an investigation has been launched that in itself can act as a powerful deterrent to further misconduct. However, other measures may also need to be considered;
   
   
3. Consider how best all parties can be supported either through trade union representation, support from counselling services or link colleagues to keep the subject of the investigation and complainant updated. All of this should be led by HR;
   
   
4. Consider what type of investigation is appropriate and proportionate in the circumstances. For example, a single complainant with a limited number of allegations against a single alleged perpetrator in an organisation with a well-resourced HR team, could most likely be investigated internally, unless there are conflicts of interest or other factors that make this difficult or impossible. A case where there may be several complainants and numerous witnesses might lend itself better to an external investigation. There are many types of external investigation but the key is that the investigator (or team) should be experienced and have the time and resource to properly manage the process;
   
   
5. Ensure that the investigator has a clear understanding of what is within the scope of the investigation and what is not. Agreeing terms of reference at the outset, and asking for and agreeing a methodology showing the process that the investigator will follow, can be enormously helpful in ensuring everyone is on the same page in terms of what is being investigated and will also help manage costs;
   
   
6. Carry out scenario planning and consider such issues as:
   
   - How will you share the findings with the complainant and the subject of the investigation, and in some cases with the wider workforce?
   
   - How will the investigation deal with witnesses who ask for anonymity or confidentiality?
   
   - What will you do if the complainant or perpetrator exits the business?
   
   - What will you say, if anything, to stakeholders such as clients and customers or the media about the outcome of the investigation, in cases that have hit the press?

In our next article on the subject of workplace investigations we will look at what happens when things go wrong.

Our Employment team has many years’ experience handling complex and sensitive workplace investigations acting for employers, employees or indeed carrying out the investigation as an independent team. Our range of investigation services and work examples are contained in our investigations brochure, please see here. Please do not hesitate to contact Maria Strauss or Kathleen Heycock or your usual contact in the team if you have any questions about investigations.

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

© Farrer & Co LLP, September 2020