Preventing Sexual Harassment in Your Organisation: The Importance of Investigation

Introduction

The way in which businesses address workplace conduct matters has undergone significant transformation in recent years, particularly pertaining to sexual harassment. This cultural shift originates from changes in broader societal views where such behaviours are increasingly less tolerated, as emanated from social movements such as #MeToo. Legislation is now catching up with the implementation of the Worker Protection (Amendment of Equality Act 2010) Act 2023 due to come into effect on 26 October 2024.¹

What are the changes to the legislation?

The legislation will place new responsibilities on employers to safeguard their employees from sexual harassment, underscoring the necessity for companies to take "reasonable steps" to prevent such misconduct. Under the new law, employers will be required to detect and mitigate sexual harassment proactively. This means employers must adopt a more robust and legally sound approach in the business’ anti-harassment framework, including the effectiveness of detecting acts of sexual harassment in a workplace setting. 

The new act also empowers employment tribunals to impose an uplift of up to 25% of the compensation awarded to complainants, where it is established that an employer has failed to prevent sexual harassment under the guidance set out by The Equality and Human Rights Commission (EHRC).² The EHRC will also have the power and remit to conduct its own investigations to enforce the preventative duty of employers. 

Although investigation is considered a reactive step in responding to detected wrongdoing, it is also a vital component of any risk framework. When ineffective, it can impact the success of any risk mitigation measures, particularly with respect to future disclosures. It is, therefore, important for organisations to ensure robust investigative procedures are implemented in preparation for the new legislation. It is also vital that all business functions responsible in harassment and conduct-related matters understand how best to approach investigations into sexual harassment claims to avoid limited or ineffective outcomes. 

Defining Sexual Harassment 

One of the common challenges when responding to disclosures of sexual harassment is establishing the specific behaviour alleged. Sexual harassment can manifest in various ways, each varying in severity and impact. The behaviour is not always obvious and can often be deployed in a subtle way, which makes it extremely difficult to investigate. Recognizing and addressing these behaviours promptly is essential for both employers and employees and a key component of the organisation’s prevention strategy. 

Examples of sexual harassment

• Physical: Includes any unwanted physical contact, from touching an arm to sexual assault. It is often overt and can have immediate and lasting effects on the victim.
• Non-verbal: Includes standing too close, prolonged eye contact, or other intrusive gestures that can cause individuals to feel uncomfortable and unsafe.
• Verbal: Offensive and/or derogatory language, sexually explicit comments, and inappropriate comments that create a non-inclusive work environment and risk wider systemic cultural issues if not addressed. 
• Digital: Inappropriate messages containing sexual comments and/or innuendos including in the form of emojis or pictures, as well as derogatory and/or offensive images sent through electronic communications and platforms, which can extend beyond office hours. 

Clearly defining what constitutes sexual harassment in company policies is paramount to ensure that at the point of investigation, investigators are able to clearly scope the allegations reported, align this with company policy, and comprehensively test whether the alleged behaviour is substantiated or not. If not scoped at the start of an investigation, drawing definitive conclusions will be difficult, restricting the business’ ability to determine what course of action needs to be taken (i.e., disciplinary, additional training, etc.). 

Limitations to the investigation may result in a lack of trust or faith by employees and lead to underreporting of misconduct. A poor reporting culture significantly influences the prevalence and perception of sexual harassment. This can restrict the business’ ability to detect harassment behaviours, to the detriment of the overall preventative framework. In ensuring a safe workplace environment under the legislation, employers need to ensure that people feel empowered to report sexual harassment. A complete and forensically sound investigation will contribute to this desired outcome. 

Corroborating Sexual Harassment

Unlike investigations into financial misconduct, which tend to feature tangible evidence, behavioural misconduct investigations are often limited to witness testimony. As described above, sexual harassment can take many forms, and perpetrators will often test their environment, starting with subtle, non-verbal approaches or communications to see what they can get away with. It is common for this early behaviour to be disregarded or ignored by others due to its subtle nature or regarded as an isolated incident. However, when left undetected, subtle behaviour can escalate over time into overt and serious offences, particularly when the workplace culture has enabled this type of behaviour in the first place. In cases of sexual misconduct, a broader understanding of context of the working relationship, how people have and are engaging with one another, and patterns of or changes in behaviour over time is important to assess live risk and its proportionality. 

Interviews are a valuable investigative tool in identifying these rich sources of information. Examples include:

• Complainant interviews: A complainant’s engagement with the investigation depends on their comfort, trust, and understanding of the process. High volumes of third-party disclosures in sexual harassment cases may indicate mistrust or discomfort by victims who are hesitant to report initially. If properly engaged in the process, complainants may reveal comprehensive timelines of incidents, which may identify other victims and/or witnesses. Interviews that apply a trauma-informed approach may also minimize re-traumatization and increase complainant cooperation throughout the investigation.
• Subject interviews: To ensure a fair process, it is important for subjects to have the opportunity to respond to each allegation and incident(s) pertaining to that allegation during their interview. Simply asking them to comment on their relationship with the complainant(s) and not clearly outlining the allegations against them may expose the organisation to counterclaims of unfair treatment or discrimination. 
• Witness accounts: Changes in an employee’s behaviour over time can indicate the impact of sexual harassment. Initial accounts made informally, where someone informs another of their experience, can serve as contemporaneous records in the investigation's timeline. This is particularly important for managers as they are usually the first to receive or be made aware of such information. These early accounts can help assess the incident's overall likelihood and may help establish patterns of behaviour.

Gathering and Retaining Information

Preventing workplace sexual harassment relies on effective information retention and management. Entities must capture information at every stage of the investigation lifecycle to ensure the business can make informed decisions. Documenting these steps, even in the early stages, will also provide a clear audit trail for the business to take necessary action where repeat or escalated behaviour may occur.

Leveraging information sources

Subtle behaviours constituting harassment or problematic behaviour are often reported informally, perhaps to colleagues or managers within the business functions, but deemed too minor to officially disclose. Witnesses often mention negative experiences or a "bad feeling" only after an investigation starts, having not reported them earlier. This creates a significant data gap that remains unaddressed until a formal investigation is deployed. Reviewing minor events collectively is crucial, as it provides context for behaviour that may escalate which can be detected and responded to early on. Some of the key areas for capturing information that can help inform investigative steps include:

• Regular anonymous surveys: deployed by HR and focused on team culture and behaviours.
• Exit interviews: often a valuable source of information, as individuals may disclose issues they did not want to raise while still part of the organization.
• Encouraging staff members to report concerns: this should be driven by team leaders and aligned with regular compliance training which reinforces the importance of reporting incidents and educates employees on recognizing and preventing sexual harassment.
• Independent referral methods: through HR and other sources for employees to raise complaints without solely relying on line managers or business leaders, who may be the subject of complaints and/or enablers of harassing behaviours. 
• Centralizing data sources: Technology can be utilized to analyse reporting data (made both informally or officially across different reporting channels) to identify patterns and trends, aiding efficient response to incidents.

Logging evidence and communicating outcomes

From the onset of an investigation, all gathered information is valuable, detailing how an incident occurred and the evidence corroborating or refuting these incidents. These details should be recorded in investigation logs, plans, repeated risk assessments, and final case reports, justifying the investigation approach taken, safeguarding protocols deployed, and conclusions drawn. Without this documentation, it is difficult for the business to justify their decisions, particularly where allegations have not been corroborated. 

Communicating a level of information on investigation outcomes to individuals involved in the matter (i.e., complainants, witnesses), whilst ensuring specific details and the identity of individuals are kept confidential, demonstrates transparency and that complaints are taken seriously and acted upon. Failure to do so can negatively impact future disclosures, as employees may feel reporting incidents is a pointless exercise.

For more information on how your organisation can best prepare for the new legislation and support in responding to sexual harassment cases, please contact conduct@ankura.com

^{© Copyright 2024. The views expressed herein are those of the author(s) and not necessarily the views of Ankura Consulting Group, LLC., its management, its subsidiaries, its affiliates, or its other professionals. Ankura is not a law firm and cannot provide legal advice.}