How to handle complaints of sexual misconduct

10 Aug 2018 By Kirsty Churm

What lessons can HR professionals learn from the Russell Mcveagh report on sexual harassment? Kirsty Churm reports

Many employers, across all industries, are facing an increase in sexual misconduct and harassment allegations from complainants emboldened by the #MeToo movement. Historic complaints are also being revisited as organisations face up to situations that could perhaps, with hindsight, have been handled better. 

Against that backdrop, a leading New Zealand law firm Russell McVeagh has published the findings of a wide-ranging, independent review into claims that five summer interns were sexually harassed by a partner and a solicitor at the firm in the summer of 2015-2016 ,which became the subject of intense media interest. The findings and recommendations provide some important lessons for HR professionals here in the UK, not just in the legal sector but beyond.

HR practitioners need to know there is now real potential for public scrutiny and criticism of the way they conduct sensitive investigations. Embarrassingly for those concerned, it was found that the law firm’s HR team, and specifically the HR director, lacked the requisite expertise. As a result of the failings, the review recommended that the HR function be completely revamped, retrained and restructured. 

The allegations were not fully investigated at the time. Although no disciplinary process commenced, the partner and solicitor both left the firm. In that situation, it may be tempting to consider the matter resolved. However, employers should consider whether this sends the ‘right message’. In the current climate, employees expect organisations to take these issues seriously, and make prompt changes where necessary. 

Tips for employers

HR managers should not be shy about pushing for the use of independent HR expertise and support on these issues. If the complaint is outside internal expertise (as was found here), or involves senior individuals, an independent investigation is often advisable and can add credibility. 

The review also recommended that the firm use an external provider for exit interviews. Although this may not become standard practice in the near future, it does highlight the need for employers to reflect on the adequacy of processes an ongoing basis, and consider whether an independent specialist would be of benefit.

It is perhaps unsurprising that all of the incidents took place at social events involving alcohol. The review held that at the time, the firm had a culture of excessive drinking. There were no policies in place to deal with alcohol or host responsibility and the threshold for unacceptable behaviour was high.

In light of the above, the review suggested the firm should introduce new policies around alcohol use, and others such as inter-office relationships, sexual harassment and sexual assault, anti-bullying, and media protocols. Some organisations will have these in place already, but many will not. They have not historically been viewed as ‘core’ policies. However, they can help to create and enforce an appropriate workplace culture. 

This may sound obvious, but do remember to follow policies that are in place. The firm had a Harassment in the Workplace policy, but it was not followed.

The review identified the existence of unconscious bias as a major risk factor for an organisation with a very significant hierarchy and stark power imbalance between partners (mostly men) and juniors (mostly women).

Finally, the decisive way in which the firm has apparently now moved to change its culture was praised. This, alongside the very public acceptance of the review’s recommendations, has arguably minimised reputational damage. 

The Russell McVeagh report is well worth reading, in particular for its spotlight on HR actions. Given Uber’s chief people officer recently resigned following criticism of her handling of an investigation into allegations of racial discrimination, this shows the current focus not only on the outcome of internal HR led investigations and processes, but the manner in which allegations are handled. Prudent HR teams will be heeding the lessons learned by others, and reflecting on the potential reputational impact of allegations in the new world, alongside the risk of an employment dispute.

Kirsty Churm is a senior associate in the employment law team at Kingsley Napley LLP

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