Sexual harassment investigations require careful handling to ensure fairness and compliance with internal policies

An employee has recently raised a complaint of sexual harassment against another employee, and I want to ensure that the investigation is carried out fairly. Is there anything that I, as an employer, should keep in mind while carrying out this investigation?  How do I handle it?

Dealing with a complaint of sexual harassment can be a difficult task for any employer due to the sensitive nature of the allegations involved. Under most internal policies, an employee can make an informal or formal complaint in relation to the conduct about which they are complaining. However, in relation to cases of sexual harassment, it may be difficult for a complaint to be dealt with informally. 

While it is imperative that employers have robust policies and procedures in place that deal with the process to follow if an employee raises a complaint of sexual harassment, it is equally as important to follow those policies and procedures, as well as taking the requirements of fairness and natural justice into consideration, when a complaint of sexual harassment is raised. 

In the recent case of A Manager vs A Financial Services Company ADJ-00053684, the Adjudication Officer found that the procedures followed by the respondent that concluded with the decision to dismiss the Complainant were, from beginning to end, flawed and unfair.

The background to this case is that on 30^th January 2024, a male manager took a female colleague’s phone from her desk sent a sexually explicit WhatsApp message to her husband. The female colleague discovered this message, and the male manager admitted to sending the message and claimed it was meant to be a joke. The female colleague later contacted the CEO of the company and asked for a meeting to discuss what happened and subsequently made a formal written complaint against the male manager.

During the investigation, another female colleague reminded the CEO of a similar incident from 2022, when the same male manager had accessed her phone and posted two sexually offensive messages as if they were from her while she was on holiday. The male manager had admitted to posting these messages as a joke. The female colleague decided not to pursue this matter further at the time but informed the male manager that she did not accept what he had done was a joke.

Following on from the incident on 30^th January 2024, the company engaged an independent investigator to investigate the allegations and on foot of the conclusions made by the independent investigator, a disciplinary panel determined that the Complainant was to be dismissed. This decision was upheld on appeal.

The Adjudication Officer in this case found that while the Complainant’s actions met the definition of sexual harassment in the company’s policy, the categorisation of what happened by the independent investigator as “high severity of sexual harassment” was too extreme.

In her decision, the Adjudication Officer was also critical of the procedures followed by the respondent during this investigation and employers should take these critiques into consideration when considering any workplace investigation.

Is an independent investigation necessary?

Employers, particularly in smaller organisations, sometimes look to bring in an independent investigator to carry out some or all an investigation into a complaint raised by an employee. This is usually done in good faith and to avoid any allegations of bias.

However, in this case, the Adjudication Officer held that it was unnecessary to submit both the Complainant and the two female employees to the rigours of an independent investigation. The Adjudication Officer held that as the Complainant had owned up to both allegations immediately, it was abundantly clear to the respondent what had happened and who had done it and therefore, the next step should have been a disciplinary investigation.

While it can sometimes be a knee jerk reaction to engage an independent investigator, this decision makes it clear that before this is done, an employer should ask itself if an independent investigation is really necessary in the specific circumstances. This can be a difficult decision to make, and legal advice may need to be taken to help determine this. It will also depend on the employer’s internal policy as some policies provide for an investigation as a mandatory first step, with no discretion to avoid that investigation step, and employers will equally be criticised for failing to follow an internal policy.

Sticking to the terms of reference

If an employer determines that an independent investigation is necessary, it is imperative that the independent investigator is clear on the terms of reference of the investigation. In other words, the independent investigator should be aware of the specific purpose of the independent investigation and should not stray outside or go beyond the scope of the investigation.

In this case, the Adjudication Officer found that it was not open to the independent investigator to reach a conclusion regarding the scale of the offence or the severity of the sexual harassment as this was a departure from the terms of reference of the investigation. The Adjudication Officer went on to comment that as a result of the independent investigator going beyond the scope of the terms of reference, this had a knock-on effect that led to the disciplinary panel relying on the determination of the independent investigator and failing to properly consider the Complainant’s defence.

Failure to allow an appeal

It is well accepted that fairness and natural justice require that an employee is given the opportunity to appeal a finding against them. While the Complainant in this matter was allowed to appeal against the disciplinary finding to dismiss him from his employment, he was not given the opportunity to first appeal the findings of the independent investigation. This was particularly detrimental to the respondent’s case in circumstances where the company’s policy on the prevention of bullying and harassment contained a right of appeal to the outcome of an investigation. Giving evidence on this matter during the hearing, the CEO said that this policy did not align with revised structures within the organisation since 2012. 

However, the Adjudication Officer did not accept this and found that as the policy had not been formally amended, the Complainant had the right to the procedure as outlined in this policy and he should have been informed of his right to appeal against the findings of the investigation report. The Adjudication Officer went on to say that given that the findings in the report were catastrophic for the Complainant, the failure to inform him about his right to appeal was a significant breach of procedural fairness.

This decision emphasises the importance of employers reviewing their policies and procedures regularly and ensuring that there is no divergence from these policies and procedures when conducting an investigation. The terms of reference for an investigation must be drafted in line with the provisions of the policy so it is very important that the investigator, independent or otherwise, reviews the policy and tailors the terms of reference in line with the content of the policy.

Failure to properly consider a Complainant’s case

Any complaint made by an employee against another employee should be handled with due care and consideration. This is both important from the point of view of the person who has made the complaint and also the person against whom the complaint has been made as this person may be facing a sanction, up to and including dismissal from their employment.

In this case, the Adjudication Officer was critical of the short amount of time the disciplinary panel took to consider the Complainant’s evidence at the disciplinary meeting. The Adjudication Officer stated that a break of 20 minutes was not sufficient for the panel members to consider the Complainant’s explanations and criticised the failure of the panel to consider the possibility of a sanction short of dismissal or to consider the Complainant’s suggestion that he be demoted.

This decision reminds employers of the importance of taking a reasonable amount of time to consider what sanctions, if any, should be imposed on an employee. It is also advisable that employers consider all possible sanctions available to them when determining a disciplinary outcome.

Conclusion

Sexual harassment investigations can be very difficult for both the employer and the employee to navigate. However, regularly reviewing and ensuring compliance with policies and procedures as well as ensuring that parties to an investigation are dealt with in a fair and transparent manner will go a long way in protecting employers should a complaint be brought against them in the WRC.

Our RDJ Employment Team regularly assists our clients to navigate these tricky issues.