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Sexual Harassment Investigation
Acting as an Investigator in a Sexual Harassment Grievance
Impartial Fact Finder
The role of an investigator in a sexual harassment grievance is fundamentally a fact-finding exercise intended to collect all relevant information related to the issues raised. Sexual harassment is considered a very serious issue, defined as unwanted conduct of a sexual nature which has the purpose or effect of violating an individual's dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment. A properly conducted investigation enables the employer to make an informed decision based on a full consideration of the relevant facts. To fulfil this role, the investigator must be fair and objective, seeking evidence that both supports and contradicts the allegation to establish precisely what did or did not happen. It is crucial that the investigator is impartial and has not been previously involved in the case to avoid any conflict of interest or perception of bias. For complex matters, such as complaints of discrimination or bullying, it is preferable to appoint someone senior and experienced.
Me the Investigator
Preparation and planning are essential components of an effective investigation. The investigator's role and responsibilities should be clearly outlined in their terms of reference, detailing the scope of what needs to be investigated and to whom the findings should be reported. An investigation plan should be drafted at the outset to ensure the process is thorough, fair, and completed as quickly as possible. This plan should include identification of witnesses, other sources of evidence (such as emails or records), specific timeframes, and policies to follow. The investigator should check all relevant internal policies, including grievance, disciplinary, and anti-harassment policies. Given the complexity and sensitivity of sexual harassment cases, the investigator should be specially trained and ensure they have appropriate expertise and access to advice. The investigation must proceed promptly, as unnecessary delays can cause memories to fade or create a perception of unfairness.
Balance of Probabilities
When engaging with individuals, the investigator must ensure fairness and objectivity throughout the process. The employee who raised the grievance should ordinarily be interviewed first to understand the issues they are aggrieved about fully. All investigation meetings should be held in a private room to ensure confidentiality and maintain the integrity of the investigation. At the start of any meeting, the investigator must explain their role, the purpose of the meeting, and the need for confidentiality during the investigation. The questioning style should be neutral and non-confrontational to gather facts and evidence. Crucially, investigators must avoid inappropriate lines of questioning, such as asking the person complaining of sexual harassment about their sexual history. Accurate records of all meetings must be kept, documenting the date, time, attendees, and key points discussed. For contested facts, the investigator determines what occurred on the balance of probabilities.
Confidentiality is Paramount
Addressing the sensitivities inherent in a sexual harassment grievance requires specific attention to support and confidentiality. It is good practice to provide support to all individuals involved—the person reporting the issue, witnesses, and the alleged perpetrator. This support may include access to an employee assistance programme or other counselling. Confidentiality is paramount during the investigation to protect the complainant from gossip. All witnesses should be reminded that any breach of confidentiality may be treated as a disciplinary matter. The content of the grievance should only be disclosed to the subject of the grievance to the extent necessary, possibly requiring redaction. Suppose the complainant works with the alleged perpetrator. In that case, the employer should consider temporary measures, such as reassigning or suspending the alleged harasser, as moving the complainant may be viewed as punishment. Suspension of the accused should only be considered if there is no other option and must be temporary, making it clear that it is not an assumption of guilt. If the complainant is reluctant to proceed, the employer should generally respect their wishes but must still maintain a record and keep the situation under review. However, formal action may be necessary if the risk of not acting (e.g., an immediate safety risk) outweighs overriding the complainant's request. Finally, the investigator should consider at an early stage if the allegations raise potential criminal matters (such as sexual assault) and whether regulators or the Police should be informed.
Objective and Concise
Upon concluding the investigation, I, the investigator, will produce an objective and objective report that avoids jargon and includes all evidence collected. The report should clearly set out the facts that were established and those that were not. If asked to make recommendations, as the investigator, I will suggest formal action, informal action, or no further action. It is essential that the conclusions reached in the report are the investigator's own. The employer should then communicate the outcome in writing without unreasonable delay.
Acting as an Investigator in a Sexual Harassment Grievance
Impartial Fact Finder
The role of an investigator in a sexual harassment grievance is fundamentally a fact-finding exercise intended to collect all relevant information related to the issues raised. Sexual harassment is considered a very serious issue, defined as unwanted conduct of a sexual nature which has the purpose or effect of violating an individual's dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment. A properly conducted investigation enables the employer to make an informed decision based on a full consideration of the relevant facts. To fulfil this role, the investigator must be fair and objective, seeking evidence that both supports and contradicts the allegation to establish precisely what did or did not happen. It is crucial that the investigator is impartial and has not been previously involved in the case to avoid any conflict of interest or perception of bias. For complex matters, such as complaints of discrimination or bullying, it is preferable to appoint someone senior and experienced.
Me the Investigator
Preparation and planning are essential components of an effective investigation. The investigator's role and responsibilities should be clearly outlined in their terms of reference, detailing the scope of what needs to be investigated and to whom the findings should be reported. An investigation plan should be drafted at the outset to ensure the process is thorough, fair, and completed as quickly as possible. This plan should include identification of witnesses, other sources of evidence (such as emails or records), specific timeframes, and policies to follow. The investigator should check all relevant internal policies, including grievance, disciplinary, and anti-harassment policies. Given the complexity and sensitivity of sexual harassment cases, the investigator should be specially trained and ensure they have appropriate expertise and access to advice. The investigation must proceed promptly, as unnecessary delays can cause memories to fade or create a perception of unfairness.
Balance of Probabilities
When engaging with individuals, the investigator must ensure fairness and objectivity throughout the process. The employee who raised the grievance should ordinarily be interviewed first to understand the issues they are aggrieved about fully. All investigation meetings should be held in a private room to ensure confidentiality and maintain the integrity of the investigation. At the start of any meeting, the investigator must explain their role, the purpose of the meeting, and the need for confidentiality during the investigation. The questioning style should be neutral and non-confrontational to gather facts and evidence. Crucially, investigators must avoid inappropriate lines of questioning, such as asking the person complaining of sexual harassment about their sexual history. Accurate records of all meetings must be kept, documenting the date, time, attendees, and key points discussed. For contested facts, the investigator determines what occurred on the balance of probabilities.
Confidentiality is Paramount
Addressing the sensitivities inherent in a sexual harassment grievance requires specific attention to support and confidentiality. It is good practice to provide support to all individuals involved—the person reporting the issue, witnesses, and the alleged perpetrator. This support may include access to an employee assistance programme or other counselling. Confidentiality is paramount during the investigation to protect the complainant from gossip. All witnesses should be reminded that any breach of confidentiality may be treated as a disciplinary matter. The content of the grievance should only be disclosed to the subject of the grievance to the extent necessary, possibly requiring redaction. Suppose the complainant works with the alleged perpetrator. In that case, the employer should consider temporary measures, such as reassigning or suspending the alleged harasser, as moving the complainant may be viewed as punishment. Suspension of the accused should only be considered if there is no other option and must be temporary, making it clear that it is not an assumption of guilt. If the complainant is reluctant to proceed, the employer should generally respect their wishes but must still maintain a record and keep the situation under review. However, formal action may be necessary if the risk of not acting (e.g., an immediate safety risk) outweighs overriding the complainant's request. Finally, the investigator should consider at an early stage if the allegations raise potential criminal matters (such as sexual assault) and whether regulators or the Police should be informed.
Objective and Concise
Upon concluding the investigation, I, the investigator, will produce an objective and objective report that avoids jargon and includes all evidence collected. The report should clearly set out the facts that were established and those that were not. If asked to make recommendations, as the investigator, I will suggest formal action, informal action, or no further action. It is essential that the conclusions reached in the report are the investigator's own. The employer should then communicate the outcome in writing without unreasonable delay.