Introduction
The typical 40-hour workweek, small teams, workload pressures, and frequent interactions can build intimate working relationships, mirroring those of domestic ones. But alongside the benefits, these working relationships can also present associated risks. Feeling comfortable in a team can lead to being overly familiar. This level of comfort can be a positive environment to work in but may also result in complacency in how team members engage with one another, blurring professional boundaries which can foster inappropriate behaviour by individuals who take advantage of this environment.
Consequently, when investigating allegations of bullying, discrimination, or exclusion, it becomes crucial not only to identify and verify the tangible facts of a case but also to understand how contextual evidence gathered from witnesses can be shaped by the environment they work in. Recognising and addressing this influence is essential to maintaining the integrity and objectivity of an investigation, and ultimately the confidence placed in its outcome.
This article will explore how language normalised by senior leadership can contribute to a problematic workplace culture, fostering conformity among employees and isolating those who do not conform. We will examine how this environment can impact testimonial evidence obtained from witness interviews, where accounts may be influenced by a conditioned perspective, leading to the downplaying of reported incidents. Failing to accurately identify this impact can result in genuine cases of bullying or discriminatory behaviour going unnoticed or falsely justified. With these evidential challenges in mind, we will discuss strategies for navigating these biases, utilising language pattern analysis to assess the context surrounding an incident and employing evaluation methods for evidence gathered in independent investigations.
The Contribution of Language in Normalising Problematic Workplace Culture
Senior leadership holds significant influence in setting the standard for what is considered appropriate language in an office. Team members may feel compelled to adopt language they deem inappropriate to avoid being left out. Consequently, repeatedly using language that undermines or belittles employees, often seen in bullying cases, normalises and desensitises due to general acclimatisation to this environment.
The overuse of terms such as “sensitive” or “soft” as standard descriptors by senior staff toward reporters may evolve into a habitual undermining of character, impacting an employee’s confidence to speak up. This inadvertent form of bullying can be easily overlooked due to the subtlety in which it is deployed, hidden amongst a “normalised” workplace culture. However, its impact on how employees are perceived, judged, and subsequently treated by their colleagues can accumulate, which has a detrimental effect on the workplace culture, but also impacts how witnesses recall genuine incidents of bullying and similar behaviour when conducting investigations into such allegations.
How this prohibits timely reporting of bullying:
The desire to conform with the majority can discourage a witness from raising concerns about bullying behaviour, as they may fear retaliation from leadership or worry they will be marginalised by their team members. Additionally, being within an environment that tolerates problematic behaviour, complainants, and witnesses may find it difficult to recognise when a situation is inappropriate and warrants reporting. The longer employees tolerate such an environment, the less able they are to identify incidents of misconduct, perpetuating a hostile and non-inclusive workplace. They might doubt their own experiences, especially when comparing their reactions to incidents with colleagues who do not share the same adverse response. As a result, in environments prone to ignoring such conduct, there are likely to be few historical reports to inform current investigations of a respondent’s past behaviour. This can impact an organisation's assessment of the risk of repeated behaviour in the future and its overall impact.
How Non-Disclosure Affects Talent Retention and the Workplace Environment
The long-term consequences of unchecked behaviour within a company can be severe. Staff may suffer long-lasting damage to their mental well-being, with teamwork and collaboration becoming fractured as trust among colleagues diminishes. Employee retention may decrease, pushing out those who are most alert and active against bullying behaviour. Ultimately, by not identifying and addressing the early stages of inappropriate behaviour, respondents are not given the opportunity to make corrections before their actions escalate to a level of irreversible damage from repeat incidents.
How Normalised Culture Impacts Workplace Investigations
The cultural environment in which participants of a bullying investigation operate significantly influences their perspective and interpretation of the incidents under scrutiny. While the factual elements of a case form the backbone of any investigation—verified through witness statements, documentation, footage, etc.—contextual evidence plays a crucial role. This evidence provides insight into the circumstances surrounding an incident, including mitigating or aggravating factors that must be considered by investigators in understanding the cause and the risk of recurring behaviour. The contrast between the behaviour experienced by the complainant and that of other employees, often noted in such investigations, may not be as pronounced due to a general tolerance of abrasive behaviour in the office. Additionally, the legal interpretation of both bullying and harassment requires an intent or reasonable belief that the behaviour is unwanted. Incidents reported must be assessed within the context of the workplace environment and overarching cultural expectations to determine if these factors contributed to the persistence of behaviour. If investigators overlook contextual evidence, the true extent of the behaviour may not be identified and the effectiveness of the investigation will be limited, leading to a failure to address the organisation's underlying issues, and increasing the likelihood of further incidents.
In our experience, the following sources are common areas where contextual evidence may be influenced by workplace culture:
Complainant evidence
A complainant’s sense of judgment may be distorted by how witnesses or colleagues interpreted the same incident and their treatment of the complainant in response. For example, if the witness appears less impacted or concerned about the incident than the complainant. This can significantly diminish a complainant’s confidence in their own experience and reactions. This is often identified when obtaining complainant statements, where they may provide their own counterarguments to the allegations they have raised to defend the perpetrator's behaviour, or when they use self-deprecating language to understate their experience.
Witness evidence
Like a complainant, witnesses may understate the behaviour in question when providing evidence, having been conditioned to perceive such behaviour as acceptable. They might also be influenced by descriptors used to characterise the complainant, such as "sensitive," which can affect their testimony regarding the complainant's character and response to an incident. In many cases, witnesses may recall specific incidents or words but claim they were not personally impacted because they “understand” the personality of the respondent. Furthermore, the desire to avoid unfavourable treatment themselves may deter witnesses from interpreting incidents as inappropriate.
Character evidence
When assessing character evidence provided for respondents, the setting and frequency of a witness’ interactions with them must be considered. Consequently, those who have only interacted with the respondent in group settings may not witness the full extent of reported behaviour or be able to distinguish it from group culture, where problematic behaviour is tolerated. It is also important to note witnesses who have worked with the respondent over many years but only on infrequent occasions and in group settings are less likely to have been exposed to or affected by any problematic behaviour, as they have not encountered it in increasing volume. These witnesses might defend the respondent due to their familiarity with them, believing they have experienced the full scope of the respondent's character.
Investigative Approaches to Workplace Investigations
To effectively uncover incidents of bullying, investigators must be attuned to the various influencing factors surrounding the facts of a case, even when accounts of incidents reported are understated. When these factors are overlooked, there is a risk of misinterpreting behavioural cues, such as descriptions of facial expressions, emotional impacts, and subsequent reactions to the behaviour being examined. This approach ensures that investigations serve not only as a reactive measure but also as a source of rich intelligence to inform culture and compliance strategy at the organisational level.
Identifying underlying influences of workplace culture within your investigation:
Pattern analysis:
- Witness vocabulary – Witness accounts can be compared to identify specific words or phrases consistently used. This may highlight an integrated workplace mentality, where repeated justifications have been heard and used in the workplace and are regurgitated in interviews.
- Joint defences – During the course of an investigation, witnesses are instructed not to discuss matters relating to the investigation with others. However, it is improbable that during an investigation, full confidentiality is maintained. Contamination of accounts can be identified by analysing any internal defences shared across witness accounts, which may indicate that they have been pre-emptively formed. This is detected through the frequent use of the same words or phrases across staff in parallel roles. For instance, in a recent case, several employees repeatedly described a colleague as "sensitive," which was used to dismiss legitimate concerns of bullying.
- Patterns in the respondent's behaviour - Grouping together commonalities in the circumstances of multiple incidents reported by witnesses, such as social interactions, one-on-one meetings in the office, or digital correspondence. Investigators can assess the similarities and differences between these channels of communication as part of their investigation. This comparison can highlight factors that may have facilitated the behaviour or why the behaviours were absent in some witness accounts.
Witness sources:
- Include both current and former employees for a comprehensive perspective – If a former employee is relevant to the case, their evidence can also provide useful contextual information. By examining their experiences within the environment in question and their reflections after leaving, investigators can better understand how these individuals view their past experiences, now removed from that environment. As there is no obligation for former employees to cooperate with investigations, it may not be possible to obtain these witness statements. In this case, any records of exit interviews held by HR may be considered as a source of information.
- Volume of information – Investigations into conduct often lack tangible evidence, making interview testimony crucial for establishing the facts of the case. The larger the pool of witnesses contributing to your investigation, the more likely you will be able to draw definitive conclusions based on the balance of probabilities.
Conclusion
The context surrounding a workplace matter can significantly influence the material evidence gathered during an investigation. By identifying, assessing, and recording this influence, an organisation can gain insights into the underlying causes that have enabled the behaviours reported. This depth of insight can inform preventative frameworks, enhancing the purpose of the investigation to ultimately support the organisation in combatting problematic workplace cultures.
Sign up to receive all the latest insights from Ankura. Subscribe now
© 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.
