Sexual Harassment Investigation
Sexual Harassment Investigation – Recently very good article was published about Sexual Harassment in the workplace on the Monash University Impact web site; https://www2.monash.edu/impact/articles/legal/workplace-sexual-harassment-how-do-we-help-women-come-forward/
I particularly liked this comment;
“A workplace investigation should not be used to minimise, silence or diminish a person’s complaint in the interest of protecting an organisation’s reputation but instead needs to be a tool used to address the issue and eliminate the risk of future unacceptable conduct.”
HR professionals and managers can often be in a difficult position especially when the person subject of the complaint is in a senior position as is often the case in power in balance harassment situations. Equally as difficult is that in many cases the parties are know to HR making it very difficult to conduct an impartial and unbiased investigation.
As a result when investigating sexual harassment complaints careful consideration must be given to the choice of the investigator.
When selecting an interval or external investigator it is important to ensure that the person has;
1. The skills to plan and conduct the investigation including complaint analysis, investigation & interview planning, conducting interviews and report writing.
2. Experience in conducting the entire investigation and providing a report that will withstand the scrutiny of a court or tribunal.
3. The time to be able to devote to and prioritise the investigation.
4. The willingness to conduct the investigation. If you have been asked to conduct an investigation and you don’t believe you have points 1, 2 and 3 it is important to voice your concerns and push back.
5. The ability to be unbiased and not subject to any conflicts of interest. This can be very difficult during internal investigations.
If you are using an external investigator/consultant you must ensure that;
The investigator is licenced and qualified. To conduct a workplace investigation an external investigator must hold a Commercial and Private Enquiry Agents (CAPI) Licence administered by the NSW Police Security Licence Enforcement Directorate. – Conducting an investigation without a licence is an offence under sections 5 and/or 11 of the CAPI act with substantial fines.
Issues for the organisation.
If you engage an unlicenced, unqualified and/or inexperience investigator, the investigation and end product, the report may be flawed. The process may cause more damage to the organisation and the parties. I recently reviewed an investigation conducted by an the unlicenced and unqualified investigator where it was obvious from listening to the audio recorded interviews that the interviewer had formed opinions as to the truth of the victims claims and actually argued with the victim during the interview and also made supportive comments to the alleged perpetrator. Thankfully the HR manager formed the same conclusion and asked for the investigation to be reviewed.
For an organisation a major risk of engaging an unlicensed investigator is that if the investigator finds against one or other of the parties and the matter goes to a court or tribunal, a decent legal representative could argue that the investigator was not a person authorised under the law to conduct the investigation and therefore their report should not be admitted into evidence or their findings disregarded. This could cause your defence to collapse.
When engaging an external investigator I recommenced that you require an investigator to provide the following;
- A copy of the licence, the licence will similar in size to a driver’s licenced with a photograph, the licence number and class and the expiry date.
- A professional profile that includes the investigators licence number and all other qualifications and experience. I would look other qualifications and experience that directly relates to conducting investigations such as;
- Certificates/qualifications in Investigation Services
- A law degree is good to ensure that the investigator has a good understanding of the law as it relates to misconduct such as sexual harassment,
- Relevant work experience such as;
- Extensive workplace investigation background 5 years plus is usually a good sign of an investigator who has conducted a large number of investigations
- Police service, Ex cops have a great deal of experience in dealing with people especially when it comes to not being intimidated by aggressive respondents. (That doesn’t happen very often but it does now and then).
- HR experience can be useful to understand the workings of an organisation from a HE perspective
- A Service Statement that outlines;
- A summary of the investigation activities undertaken by the investigator.
- The investigators methodology
- A basic cost model used.
- Following the initial engagement the investigation should be able to provide to you after the analysis of the complaint
- An initial investigation plan detailing the conduct of the investigation and what activities (planning, draft letters and interview plans, interviews, the report) that will be carried out and the time needed for the activities.
- An initial cost estimate based on the information at hand at the time. It most be noted that investigations are fluid and change all the time, personally I provide updated plans and cost estimates during the course of the investigation.
If an investigator cannot provide the above I would question their capacity.
Making the decision
Remember you get what you pay for. If you want a professional investigation where the investigator will stand behind the process and the report if the matter goes to a court or tribunal, then get a professional investigator in the first place. Part of the job of the professional investigator is to take your stress away, not add to it. AWPTI can assist you in this regard:
We can also provide training programs to assist HR professionals and managers is they wish to conduct internal investigations, all course can be provided face to face or remotely via Zoom, detail via the links below.