Harassment & Bullying: Investigating Alleged Inappropriate Workplace Behaviour
Harassment and bullying in the workplace can create a toxic work environment that erodes employee morale, resulting in increased staff turnover and potential exposure to legal and reputational risk. These risks can be mitigated through thorough, prompt and fair workplace investigations. This article explores the steps involved in a well-run workplace investigation, with a particular focus on harassment and bullying allegations.
Understanding Harassment and Bullying
Harassment is defined in law as unwanted conduct related to a protected characteristic that has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. The relevant protected characteristics are age, disability, gender reassignment, race, religion or belief, sex and sexual orientation. It also includes unwanted conduct of a sexual nature and less favourable treatment because a person rejected or submitted to such unwanted conduct.
Bullying has no legal definition but can be recognised as encompassing a broader range of unacceptable behaviours targeted at work colleagues which the perpetrator knows (or ought reasonably to know) will cause them to feel uncomfortable, distressed or ostracised. This can manifest itself in a multitude of forms, ranging from verbal abuse and threats to unfair management practices or sabotaging someone's work.
Importance of Addressing Inappropriate Behaviour
- Legal Compliance: All employees, workers and job candidates have legal protection from harassment. In addition, from 26 October 2024, there will be a new specific duty on employers to take reasonable steps to prevent sexual harassment in the workplace. As such, failure to promote a safe and respectful work environment and address allegations of harassment and bullying can lead to liability for employment claims.
- Employee Well-being: Addressing inappropriate behaviour promptly helps protect employees' mental and emotional health.
- Organisational Culture: A proactive approach to handling harassment and bullying fosters a culture of respect and trust, enhancing overall workplace morale and promoting retention of key talent.
Steps in the Investigation Process
Receiving the Complaint
- Confidential Reporting: Ensure employees have safe and confidential avenues to report harassment and bullying, such as hotlines or designated HR personnel.
- Prompt Response: Acknowledge the complaint quickly and assure the complainant that the matter will be taken seriously and handled confidentially.
Planning the Investigation
- Selecting an Investigator: Choose an impartial investigator, either internally or externally, who has the expertise and experience to handle sensitive allegations.
- Defining the Scope: Clearly outline the scope of the investigation, identifying the specific allegations to be investigated and potential sources of evidence.
Collecting Evidence
- Document Review: Collect all relevant documents, including emails, relevant policies and procedures, text messages and other forms of instant messaging.
- Conducting Interviews: Interview the complainant, the alleged perpetrator, and any relevant witnesses in a private and confidential setting. Ensure all parties understand the importance of honesty and confidentiality.
- Recording Statements: Accurately document all witness evidence and have interviewees review their statements to confirm their accuracy.
Analysing Evidence
- Objective Analysis: Review all collected evidence impartially, considering all perspectives without bias.
- Pattern Identification: Look for patterns or repeated behaviours that indicate harassment or bullying.
Preparing an Investigation Report
- Conclusions Based on Evidence: Determine whether there is sufficient evidence for a case to answer at a disciplinary hearing, based on the evidence. Ensure that any findings of fact are evidence-based. Where there is insufficient evidence to make a finding of fact, state this clearly.
- Detailed Documentation: Document the entire investigation process and the rationale for the conclusions reached.
Moving to Disciplinary Process
- Arranging a Disciplinary Hearing: If the investigation concludes that there is sufficient evidence to justify potential disciplinary action, the alleged perpetrator should be invited to a formal disciplinary hearing in accordance with the employers disciplinary procedure. The report and evidence collated during the investigation should be provided in advance.
Communication and Follow-up
- Informing Parties: Communicate the outcome of the investigation to the complainant and the alleged perpetrator while maintaining confidentiality about specific details.
- Support for Complainants: Provide support to the complainant, which may include counselling services, changes to their reporting lines or working arrangements, or other appropriate measures to mitigate the risk of any repeat incidents or retaliation.
- Policy and Training Review: Review and update workplace policies where appropriate to help in mitigating the risk of future incidents. Implement additional training or awareness programs if necessary.
Challenges and Solutions
- Maintaining Confidentiality: Protecting the confidentiality of all parties involved is crucial. Use secure systems for documentation and limit access to information.
- Ensuring Impartiality: To avoid allegations of bias, consider using external investigators and/or provide training on unconscious bias to internal investigators.
- Managing Emotional Impact: Recognise the emotional toll investigations can take on employees. Offer access to counselling and support services throughout the process.
Our expert employment law solicitors all have many years’ experience advising individuals who are in your position. We will be able to guide you through the process and to help you secure the best possible outcome.
We offer a range of services, so please contact our friendly customer services team to discuss further via hello@kilgannonlaw.co.uk or 0800 915 7777.
This article is for information purposes only and is correct at the time of publication. It does not constitute legal advice 13.07.24