Investigating Allegations of Sexual Harassment

The #MeToo movement highlighted how widespread the problem of sexual harassment is and gave women the courage to speak up, even when the alleged perpetrator was someone of considerable power. It also reinforced the consequences of behaving too casually and the need for clear boundaries, especially in the workplace.

Thanks to significantly more discussion on the topic of sexual harassment, most organisations should be crystal clear about their responsibilities to provide a safe working environment for employees, as well as the legal and brand implications of failing to do so. However, what often goes amiss is the implementation of proper processes when an allegation of inappropriate conduct is raised.

Are harassment claims a managerial problem?

Without proper processes in place, an organisation can mistakenly think that the manager should investigate a sexual harassment complaint. However, as per iHR Australia’s Custodians of Culture Training, it is the manager’s duty to record the specifics of a complaint, check the well-being of the complainant, and then discuss the matter with HR, not to conduct an investigation.

A line manager would rarely have the position of independence or skills required to conduct a fair and balanced investigation. Furthermore, the manager could potentially be a witness. Where perceptions of bias, even unconscious bias, exist and an objective and impartial investigation is required, an independent professional may be necessary.

According to the Director of Workplace Relations at iHR Australia, John Boardman, “An external investigator has no knowledge of the personalities or politics around the complaint; their ability to bring impartiality and objectivity to the investigation process adds to its robustness. The resultant ‘arm’s length’ approach to conducting an investigation is particularly important when the findings are significant for those they affect, and when they may be scrutinised in an external (judicial) arena.”

Why incidents of workplace harassment need an expert investigator

When incidents of bullying, discrimination and harassment occur, employing the services of an experienced workplace investigator makes good business sense. It’s a decision that can ensure an objective and impartial investigation, and mean the problem is dealt with before it is referred to external bodies by one of the parties involved.

In the case of sexual harassment, statistics demonstrate a clear correlation between behaviour and organisational culture. From the investigations conducted by the investigations team at iHR Australia in 2018-19, 80% of complaints relating to sexual harassment involved repeated behaviour, as opposed to one-off incidents; and other employees were aware of inappropriate behaviour in 60% of instances of sexual harassment. In approximately three quarters of complaints of sexual harassment, a pattern of inappropriate behaviour was substantiated.

Identifying underlying causes

Workplace investigations conducted by iHR Australia seek to identify any underlying causes of a complaint, rather than simply dealing with matters of evidence. Often workplace issues can stem from a lack of capability, cultural issues, systematic process failures, ambiguous HR policies, insufficient workplace training and risky management styles. This approach can help prevent future incidents and thus mitigate risk.

While the highest percentage of complaints come from non-managerial employees, anyone within an organisation can be implicated, including CEOs and members of the board. Regardless of position or rank, in iHR Australia’s investigations in 2018-19, systemic cultural issues were identified as a contributing factor in 30% of cases. Of these investigations, management was responsible for the negative culture that ultimately lead to inappropriate conduct in 66% of cases; and in approximately 82% of cases, HR/Management were not aware of these cultural related risk factors.

Investigations can range from dealing with informal complaints to significant and complex, formal investigations. Regardless, if improvements in working relationships are to be achieved, it is imperative that the investigation process goes beyond findings of fact. This is an important step toward identifying causative factors in workplace complaints, including leadership style, policies and procedures, culture and practice, organisational skills, design and change.

iHR Australia’s Director of Workplace Relations, John Boardman said, “It is critical that an investigation provides broad based observations rather than a simple finding of fact. Workplace tensions are rarely one dimensional and inquiries by the investigator need to go well beyond the immediate parties and provide meaningful insight as to how the tension/conflict arose and what can be done to mitigate the risk of it being repeated in the future. Legalistic approaches too frequently focus on who is to blame and how to defend potential litigation.”

Positive outcomes of an investigation

Despite the inevitable tensions, allegations of sexual harassment in the workplace can lead to positive outcomes. A balanced investigation, conducted rigorously and fairly by a professional investigations partner, will assist in building employee confidence in the organisation’s grievance processes and their belief that they are being protected and nurtured by their employer.

By implementing learnings and recommendations from the investigation, organisations will improve on all factors that will lead to a more sustainable and profitable organisation with less conflict and reduced workplace stress.

While some perceive the current increase in complaints as a burden, there is good reason to embrace the fact that individuals have found their voices and that this phenomenon is encouraging organisations to review how safe their workplaces really are and champion their stated organisational values. Most of all, the #MeToo approach has reinforced the need for robust and well communicated complaints handling procedures to reduce risks posed by the practice of making public allegations of sexual harassment on social media or through mainstream media.

Learn more about iHR Australia’s Independent Workplace Investigations