Tim Kingsbury: Investigations into sexual harassment

Tim Kingsbury is an investigations specialist at CMP Resolutions.

The flood of accusations of sexual harassment against film producer Harvey Weinstein is making organisations of all kinds very nervous: a figure central to an entire industry, with a long-standing reputation, reduced in days to a target for ridicule.

We’re in a new place when it comes to allegations of inappropriate behaviour at work. Confusion over what might have been flirting, what was a joke or an awkward attempt at starting a relationship is now looking and feeling very different. Employees have the models, precedents and language to speak up about what has happened or is now happening to them.

No organisation is safe from allegations relating to current or historic behaviour, and the resulting problems for credibility, staff relationships, worsening grievances and tribunal cases. HR professionals need to look again at the risks involved to the organisation and their people and how they would cope with an escalation of rumours and gossip into formal claims against staff, managers and leaders.

Getting an investigation right, in particular, is central to establishing a basis of trust. The Football Association is just one recent example of a high-profile employer whose handling of an investigation into misconduct – in this case, the behaviour of England Women’s football team Mark Sampson – has led to serious questions over the credibility of the organisation’s leadership in general.

Be pro-active in encouraging openness and communication: As a starting point, departments need to ask whether their systems and approach are fair and just, do they lead to the kind of confidence that encourages a victim to come forward. Having a ‘Clear Air’ culture in the workplace is important for supporting good working practices as well as helping minor issues come to the surface and be resolved early. It also acts as a fundamental way to discourage inappropriate behaviour, pressures and secrecy.

Ensure there are clear policies in place to respond to a sexual harassment case: A knee-jerk response isn’t going to help. It’s important to consider the system to be followed, who’s responsible and what expertise is on hand. Who’s going have the initial conversation with the employee making an accusation – is that HR or the line manager – and do they have the skills to cope? Mediation can be useful in preventing an escalation of situations – but are there trained staff to do this? Or is there an external partner you can rely on? A first principle for any employer should be that there is never a justification for secrecy or fudge in these cases. Staff have to be able to trust in the professionalism and integrity of their organisation, and increasingly sexual harassment claims will be key moments in terms of proving strong and effective management.

Watertight investigations are critical: There are many risks associated with mishandled investigations. The potential for investigation conclusions being challenged, claims of bias leading to employment tribunals, collapsing cases and humiliation; the cost of extensive management time up to senior levels; cases that keep running over long periods; the effects on staff morale, relationships and the work environment for the long-term. There are basic principles that need to underpin the response and demonstrate a house that’s in order: any allegation needs to be treated seriously in the first instance – there should, for example, be an onus on the person facing an accusation to engage in the process, and not have the option to refuse any participation. Investigations need to be formal in terms of how they are organised, carried out and reported on; they need to be proportionate with the alleged offence (so the more serious the allegation, the more evidence should be gathered, more witnesses called and paths of inquiry followed to their logical end). There should never be an onus on the ‘victim’ to be accommodating in terms of reaching a settlement (for the sake of the reputation of their employer or the name of the individuals involved). Investigations need to be undertaken as quickly as possible in the interests of both sides.

Be aware of the risks involved with using internal staff for investigations: Even if senior managers are brought in from a different department, with no association with the member of staff involved, there are always going to be loyalties and sympathies that cloud decision-making. Investigations run with internal resources tend to be slow, relying on the availability of senior staff, which can prolong anxieties and act as a barrier to victims (not wanting to extend the experience or after a time, even participate). A typical danger in investigations is an assumption that a panel involving senior leaders, used to a high level of control over their world and for their team to be submissive, will be fair-minded. Training in fair decision-making can be needed among panel members involved in the investigations and resolving situations. A panel may well include HR and a staff representative, but the assumed power will usually lie with the senior leader or manager when there needs to be equality in terms of how views and perspectives are treated.

Build a reputation, a sense of confidence and resilience: making use of external expertise to run investigations into complex cases is invaluable in resolving situations, and to ensure that the employer is known and respected for its professional handling of difficult, sometimes ugly situations – it’s open, fair and reasonable in all its dealings. There also needs to be seen to be an even-handed response. If an alleged perpetrator of sexual harassment is found guilty, it’s important a department can ensure that sanctions are consistent. If one staff member is only given a rap over the knuckles while another at a different department is dismissed from their post for a similar offence then it only weakens the position in and creating suspicion and confusion and undermining confidence.

About Tim Kingsbury

Tim brings over 18 years of investigation experience to his role as Head of Investigations. Formerly he was a Royal Navy Commander, and he is a qualified Barrister. Tim leads CMP’s team of investigators who deliver our national investigation service, and he quality assures all aspects of our investigation service and investigation training provisions. He developed the ILM Endorsed Professional Workplace Investigator course; and he is a trained mediator.

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