Employers investigating allegations of misconduct have to decide how wide the investigation ought to be – should they focus on the discrete allegations, or should they look beyond them for more evidence of other misconduct?
The dilemma is more pronounced where the allegations are of bullying and harassment, especially if they relate to a protected characteristic under the Equality Act 2010, such as age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex or sexual orientation.
On one hand, it can seem unfair to try to expand the investigation beyond the allegations that have already been made – the subject of the investigation may feel that the employer has predetermined a dismissal outcome and is looking for a reason to dismiss them. Investigating matters beyond the specific allegations may support that idea.
Investigations can be destructive so employers will usually want to limit their investigations to the specific allegations. The fact that questions about bullying, harassment or discrimination are even being asked may create a pall of suspicion for the subject of the investigation, which could end up destroying the relationship between the subject and his or her colleagues, no matter what outcome is ultimately reached.
Investigations should usually be kept as confidential as possible, but the more witnesses are interviewed about the allegations, the more likely that word will get out. However, sticking rigidly to the specific allegations can lead to unacceptable outcomes.
Let’s imagine that a junior employee (X) makes an allegation that her boss (Y) sexually harassed her and that a colleague (Z) saw it happen. The employer investigates by interviewing X, Y and Z and asking them for their accounts of the incident. X describes her complaint in more detail, Y denies the allegation and Z says she was in the area when the incident allegedly happened and that she didn’t see it but did notice that X was very upset after.
If Y is a successful client manager and brings in lots of money, some employers might be reluctant to lose him. On the evidence of X, Y and Z, the investigator might find there was not enough evidence to uphold the allegation, and decide no disciplinary action can be taken.
On a basic level, the employer has investigated the specific allegation by asking all those involved to give their accounts, even Z who had not come forward herself. The evidence certainly doesn’t exonerate Y, so what if this is the tip of the iceberg? Y may have been sexually harassing people for years, and his victims may have been afraid to complain because of his status and earning power. What if a few months later, Y sexually harasses someone else? Will the employer really be able to show its investigation of X’s complaint was adequate?
Employers have a duty of care to all their employees and they could breach that duty if they don't take reasonable steps to identify, discipline and potentially dismiss a potential bully, harasser or discriminator.
Businesses should try to balance confidentiality for the subject of the investigation against their own duty of care to other employees. Brief investigations can be adequate but there’s nothing wrong with asking everyone being interviewed whether they know of any other occasions when the subject had behaved inappropriately. It might lead to more allegations, and it might make things more difficult in the short term, but if the employer doesn’t at least ask that, they may well be stuffing their fingers into their ears.
Mark McWilliams is a senior associate in the employment team at Kingsley Napley