Dealing with allegations of misconduct in the workplace

In recent years, there has been a seemingly endless stream of media scandals about unacceptable – and sometimes shocking – behaviour in the workplace and other professional environments, often of bullying and/or sexual harassment, and even of criminal acts. These concern a wide range of institutions/organisations from Downing Street and the House of Commons to the BBC and Channel 4, the CBI, and the worlds of cricket and football, to name but a few. The finger is of course pointed initially at the alleged perpetrators, but this is often rapidly followed by the raising of questions about who in senior management knew what, and what steps they took to address the concerns raised.    

Employers need to ensure that they have robust procedures in place – and that they respond promptly and appropriately when issues are raised. Complaints need to be investigated by experienced and impartial investigators who not only understand the relevant legal framework (for example, discrimination legislation), but are able to inspire confidence in all those involved.  Employers owe a duty of care to all their staff, whether the individual[s] raising the complaints, the accused, or other witnesses, and investigators need the skills and experience to deal with sensitive and often complex matters. Terms that do not have a statutorily defined meaning – such as ‘sexism’, ‘misogyny’ or ‘institutional racism’ – are sometimes used by complainants; ‘bullying’ (frequently cited) is also not a legally defined term. The investigator needs to ensure that they have fully understood what is being alleged, and what the test is for determining whether the behaviour alleged has occurred.

A poor investigation will invariably result in a poor outcome. This not only means that the problem may ‘mushroom’, but it can lead to expensive litigation and reputational harm. Staff will not have confidence in the organisation’s ability and willingness to tackle poor behaviour.  Mental health may be affected, and there may be an adverse effect on staff retention. 

A delayed investigation can also be problematic, whether because key witnesses have left the organisation or because memories have faded. 

By contrast, a sound investigation will invariably prove to be a sound investment. Birketts’ investigators are qualified and experienced employment lawyers with a track record of getting to the bottom of the issues and presenting the evidence and findings in clear, comprehensive, and measured reports. Such reports are invaluable in ensuring the appropriate next steps are taken.

So – if concerns are raised on your watch, act promptly. Don’t pre-judge. Ensure that someone independent and with the appropriate skills and experience is appointed to investigate. Instead of ‘kicking yourself’ later when it transpires that you are under scrutiny for not having taken the appropriate steps in response to concerns, you will be putting yourself and your organisation in the best possible place, reducing the risk of expensive litigation and damage to reputation going forward.