“One shall be conducting an independent investigation”
05 March 2021
Whatever you might have to say about the timing of fresh bullying allegations being made against the Duchess of Sussex, the response of Buckingham Palace echoes that of many other high-profile companies and institutions over recent months and years: an investigation will take place. In this article, we consider the many important and complex issues organisations need to navigate when conducting investigations into allegations in the workplace.
Buckingham Palace can now line up alongside organisations as diverse as the Football Association, the Labour party, the BBC, UK athletics, Handforth Parish Council, and many more besides. All have committed to conducting investigations in response to high-profile allegations.
These investigations have ranged from focusing on allegations against specific prominent individuals (for instance the investigation into the former FA Chair, Greg Clarke’s, use of unacceptable language when discussing issues of diversity and racial abuse in November 2020) to allegations of systemic issues across organisations (such as the Equality and Human Rights Commission investigation into anti-Semitism in the Labour Party in October 2020) and everything in between.
The handling of investigations can also bring the organisation further into the media spotlight. Tragic outcomes such as the death by suicide of the former USA Olympic gymnastics team coach, John Geddert, against the backdrop of an investigation into abuse charges, and of Carl Sargeant, the Welsh Cabinet Secretary for Communities and Children, who was dismissed from his post pending a full investigation, highlight just how significant these issues can be.
Organisations need to get their response right, and do so quickly. The perceptions of the alleged victim(s), those accused of wrongdoing and the wider public are all relevant considerations.
Is an investigation needed?
The first step to consider is whether the matter can be resolved informally via mediation or an informal discussion between the people involved. This may be appropriate if the complainant has specifically asked for the matter to be handled informally. However, making a decision to resolve an allegation without conducting an investigation can leave the organisation vulnerable to legal claims and/or the reputational ramifications of allegedly trying to cover things up. This is particularly the case where the allegations are levelled against someone very senior or who is very high profile.
Who should investigate?
If an organisation decides to investigate the allegations, it next needs to decide who should lead the investigation. As a general rule, the best investigator is one who is able to act without fear or favour.
The investigator could be someone internal who is seen as unbiased – for example, someone from an associated company or unconnected department. Alternatively, if there is no one internally who is sufficiently neutral, or who has the necessary time and expertise, an external investigator can be appointed. An anonymous survey or phoneline could also be used as an initial information-gathering tool in some circumstances.
Where the individual subject to the complaint is high-profile within the organisation (and potentially beyond), factors to consider include whether:
- the investigator is sufficiently senior as compared to the subject of the complaint;
- an independent or external investigator may be better placed to investigate - either for reasons of specialist skill, availability or due to the seniority of the accused; and
- it may be beneficial to have the investigation conducted by an experienced, professional investigator.
Where the allegations concern a high-profile person, confidentiality is crucial. When conducting the investigation, organisations should consider carefully how much information is shared with witnesses when they are interviewed and ensure that the need for confidentiality (and the repercussions of breaching this) are explained.
Some investigations may involve an overlap with regulatory or criminal considerations. An organisation may therefore decide to alert the police to a matter and/or provide information. There is generally no obligation to report suspected criminal activity, but organisations should consider whether they are under any internal or regulatory obligations to take such action, or any obligations to report the matter to any other regulatory body.
What shouldn’t we do?
It is easy for an organisation to undermine an investigation before it has even begun. When dealing with high-profile allegations and related press reports, it will be tempting to respond to the allegations, and it may be necessary to have a full media strategy in place.
It is important that anything said or done by the organisation does not:
- Suggest or imply that the complaints are true (or indeed false) before the investigation is complete.
- Breach confidentiality or say anything to dissuade potential witnesses from coming forward.
- State what the outcome will be if the complaints are upheld (as this will undermine a fair process further down the line).
- Overpromise on speed of delivery of the investigation and its findings – an investigation done properly and thoroughly is better than one which is done quickly.
A failure to provide support to all parties can also have damaging effects. Whether it be an allegation of bias or tragic outcomes, it is better to offer practical support - such as counselling or employee assistance schemes - to both the alleged victim and the accused, alike.
The organisation should not forget to check-in with both the alleged victim and the accused as the investigation continues. The process can often take a considerable period of time and things might ‘go quiet’ from their perspective - having an appointed (and appropriate) person regularly check on the wellbeing of those involved to reassure them that they have not been forgotten can be very valuable.
What if the allegations turn out to be true?
Something that organisations should always be prepared for when embarking on an investigation is that they will need to address the issues that arise from the investigator’s findings. There is always the possibility that the investigator’s findings may be damaging to the business or the reputation of a key individual. For instance, investigations into allegations of bullying could result in a finding that a high-profile member of the organisation did bully those who were more junior than them, or a company could find that it has a systemic problem with racism within its workforce.
Where an investigation results in a complaint being upheld, organisations need to devise a plan to address the issues and ensure steps are taken to rectify matters, particularly if the investigation is the subject of media scrutiny. Tempting as it may be to try to downplay an issue, this can add fuel to the flames, as was the case when Boris Johnson attempted to step in to make the outcome of an investigation into Priti Patel more “palatable” in November 2020.
Organisations should also consider whether it might be helpful to have the independent investigator suggest recommendations for next steps at the conclusion of the investigation. Where it does so, the organisation will need to be prepared to act on those recommendations, or have very clear reasons for not doing so, to avoid further legal and reputational harm.
How we can help?
If you need advice on how to address allegations that you believe require investigation, please speak to your usual Lewis Silkin contact.
We also have a highly experienced team of specialist investigators who can conduct investigations into a wide range of matters on your behalf: Investigations and Regulatory team.
Our Reputation Management team can assist with managing the reputational repercussions of allegations made against your organisation.