Investigating discrimination and harassment concerns

Hannah Disselbeck explores how companies should approach allegations of inappropriate behaviour in the workplace

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Employers are increasingly called upon to manage sensitive employee relations issues involving allegations of discrimination or harassment. The legal and reputational risks of failing to manage these issues appropriately are considerable. However, where concerns do arise, there are also opportunities to take steps to reinforce positive organisational culture. 

Where a concern is raised, the first response is crucial in setting tone and establishing trust. Often, concerns will be raised with a manager in the first instance. Managers need to be trained in how to recognise discrimination and harassment concerns, and to escalate these in accordance with the organisation's procedures. Training should also emphasise the importance of a ‘human’ reaction that makes a complainant feel heard and establishes trust. 

The framework for an investigation into an allegation of discrimination or harassment will be similar to any other investigation. Often, these investigations are document light, though investigators should be aware that, with the advent of hybrid working, more workplace issues are moving online (and into recorded media). Witnesses will usually be key. Particular issues arise in managing witnesses and, in dealing with witnesses, investigators should keep three key principles firmly in view:

  • Empathy. Investigations are stressful, and that will be particularly true where you are dealing with sensitive allegations. It is important to approach witnesses with empathy and to secure cooperation, but also to ensure that actions are consistent with wider cultural objectives.

  • Support. You may wish to nominate a member of the HR team as a point of contact for concerns or, in serious cases, arrange support from mental health professionals. It may be appropriate to show flexibility in relation to witnesses' companions; for example, to allow witnesses to be accompanied by a friend or family member. If the allegations are sensitive, you may wish to arrange offsite meetings in a neutral location for key witnesses. You may also need to allow for more breaks in interviews if witnesses are likely to be emotional.

  • Transparency. Issues arise where investigators fail to properly manage witnesses' expectations as to what use will be made of their evidence, and particularly who will have access to it. It is important to be clear on these points with witnesses at the outset to maintain trust.

  • Investigations will never be a good experience for participants. However, if you handle an investigation sensitively, it will reinforce trust in the organisation and, ultimately, contribute to a strong culture. From a risk management perspective, it may also help you avert claims if participants feel that issues are being properly investigated and dealt with.

    Once an investigation has concluded, you will need to judge the most appropriate action to take. You may need to look at a range of measures, and it is helpful to consider these from a ‘backward looking’ and a ‘forward looking’ perspective. The complainant will be looking for an outcome that recognises their experience. 

    If allegations are established, disciplinary action may be appropriate. If allegations are not established, it may be harder to provide that recognition, but it is worth considering alternatives, such as, for example, a mediated conversation. 

    From a forward-looking perspective, employers can use issues that arise as learning points and take measures to improve processes and culture. What measures may be appropriate will depend on the circumstances, but they may include training, targeted coaching, a review of policy, or new mentoring programmes. By looking at follow-up measures from these two angles, employers can manage both past and future risk. They will also be able to send a powerful message underlining their commitment to an inclusive culture.

    Hannah Disselbeck is a senior associate in Fieldfisher's employment team