From racial abuse to bullying and sexual harassment, internal and independent investigations into inappropriate workplace conduct appear to be booming. In recent weeks, Buckingham Palace announced it is investigating “very concerning” claims that the Duchess of Sussex bullied members of her staff, while New York Governor Andrew Cuomo is under the spotlight following allegations he sexually harassed several former aides, and Yorkshire County Cricket Club has come under fire for delaying an independent report into “institutional racism” at the club.
Likewise, Amazon says it is reviewing allegations raised in an employee’s lawsuit claiming “systemic” racial discrimination against black workers at the tech giant; McDonald’s is to begin a review of its workplace safety policies following reports of verbal and physical harassment at the fast-food chain; and Deloitte is conducting a probe into bullying allegations levelled at its deputy chief executive.
With increased employee activism and the high risk of social media and consumer backlash, employers must act quickly and, where possible, transparently when allegations of inappropriate behaviour come to light. But when claims of wrongdoing are made, either internally or externally, what best practice advice should employers follow when launching an investigation? And, perhaps more importantly, what should they avoid doing at all costs?
“Employers should take allegations of wrongdoing and discriminatory behaviour seriously, and should commence an investigation as quickly as possible,” says London-based Morgan, Lewis & Bockius partner Louise Skinner. “If the employer has a procedure or policy in place, such as a grievance or disciplinary policy, they should ensure the necessary procedural steps are followed, and that the parties to the investigation are made aware of the steps involved. A clear investigation plan at the outset will ensure all relevant issues are explored and that the investigation can be completed without delay.”
“It is essential to think carefully about the precise scope of any investigation at the outset and to keep this under review as the investigation progresses,” agrees Blackstone Chambers’ Diya Sen Gupta QC, chair of the Employment Law Bar Association. “Involve the person appointed to investigate in the process of finalising their terms of reference and make sure the investigator is aware of any potential regulatory issues.”
While every effort will be made to preserve confidentiality, this cannot be guaranteed in every case
Employers should be alert to potential conflicts of interest when appointing investigators and, to avoid claims of lack of independence or bias, consider bringing in alternative personnel, advises Skinner, adding that employers must also take steps to ensure that the evidence provided, and the identity of parties involved in the investigation, are kept confidential as far as possible.
“This is often a key concern for individuals participating in an investigation,” she says. “However, it is important the employer makes clear that, while every effort will be made to preserve confidentiality, this cannot be guaranteed in every case. Emphasising that retaliation in any form will not be condoned should help to mitigate employees’ concerns in this respect.”
“Be realistic about what may be involved, in terms of document review and interviews, and about the timescale for the investigation,” adds Sen Gupta QC. “Be clear from the outset about who will have access to interview notes and the investigation report. Consider arranging for a transcription service to take a note of interviews. Consider password-protection for the interview notes and investigation report.”
Of course, in certain jurisdictions, an employer’s internal investigations must strictly comply with relevant legislation or regulation. “In Belgium, for example, the employer needs to appoint a prevention advisor who is specifically trained to deal with psychosocial issues,” explains Van Olmen & Wynant partner Nicolas Simon. “The investigations of this advisor are entirely confidential, and they enjoy a legal dismissal protection. At the end of the investigation, the advisor will hand over their recommendations to the employer, who will need to take this into account when enacting measures. If the internal procedure does not result in the recommended or necessary measures, the social inspection services can be called upon to intervene.”
In cases where the allegations are significant, Simon suggests temporarily removing the alleged perpetrators from their workplace to another post or suspending them for the duration of the investigation. “However, employers need to be careful as these measures might cause them to violate their own obligation to provide work to the employees or it could constitute a unilateral modification of the employment contract, which can lead to constructive dismissal. An alternative is to move the victim to another department, with their consent, to no longer be in contact with the perpetrators.”
Employers should not assume that any investigation they conduct is covered by privilege
As highlighted in numerous studies this past year, with the covid-19 pandemic keeping workers physically separated from one another certain types of inappropriate behaviour have decreased while others, such as digital harassment, have increased. Those charged with reviewing allegations of employee wrongdoing have largely had to conduct their investigations remotely, although, as Simon explains, efforts to organise in-person meetings can be made where it is important to do so.
“In Belgium, prevention advisors less often go into companies, but employees can still talk to them face to face, subject to social distancing or with the protection of plexiglass,” Simon says. “This is more effective because it is important to read the body language of the employees involved.”
Investigations via video link have advantages and disadvantages, notes Sen Gupta QC, adding that additional measures need be taken by those working remotely. “It is worth checking that anyone being interviewed by video is alone and in a private space, unless they have exercised the right to be accompanied,” she says. “This may seem an obvious expectation, but there is no harm in checking. It is also important to give thought to document access in advance: does the interviewee have access to the documents on which they are going to be asked questions?”
“The employer should be very clear as to whether and how the interview will be recorded, and whether notes will be shared,” adds Skinner. “All parties to the investigation, including the complainant, the accused, and any witnesses should be told who they can contact for support and with questions, to avoid feelings of isolation. While practical steps, such as gathering and reviewing documents, can take longer during periods of remote working, parties to the investigation should be kept up to date on progress, particularly where delays are envisaged to the communicated timeline.”
While the above guidance represents some best practice advice for conducting investigations now and in a post-pandemic future where remote working looks set to continue, what should employers avoid doing when confronted with allegations of workplace misconduct or discrimination?
“Employers should not delay commencing an investigation once concerns have been raised, as this may give the impression that the concerns are not being taken seriously. At the same time, employers should avoid setting unrealistic expectations with regard to timing of the investigation,” explains Skinner, adding that a thorough review of all evidence may require the parties to be flexible on the timeline of any published report.
“Employers should not assume that any investigation they conduct is covered by privilege since there are very limited circumstances in which litigation privilege or legal advice privilege can be claimed,” advises Sen Gupta QC. “They should also avoid giving individuals blanket assurances about confidentiality.”
Importantly, an employer should not rush to dismiss an employee before there is sufficient certainty about the allegations made against them, says Simon. “If the allegations turn out to be false, an unfair dismissal claim could become a costly affair. Also, the employer should try not to blame the victim for filing a complaint. Taking revenge on victims can cause even more bad PR.”