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Workplace Investigations

In the wake of Doctor Ní Shúilleabháin speaking out about her experience of workplace sexual harassment, the Minister for Higher Education, Simon Harris, has promised a zero-tolerance approach to tackle the issue in third level institutions.

An approach to tackling sexual harassment in third level institutions or any workplace will include a process for robust, effective investigations.

Workplace investigations involving allegations of sexual misconduct or sexual harassment can be challenging for the institutions to tackle, particularly if what is alleged may also constitute a criminal offence. However, this should not be a reason not to conduct an internal investigation or to delay its initiation. If the Gardaí are investigating the alleged misconduct under criminal law, it is still possible to progress a workplace investigation while remaining cognisant of the paramountcy and integrity of the criminal investigation.

There are many reasons why the criminal complaint path might not progress, including:

  • The Complainant may not wish to make a criminal complaint
  • The alleged behaviour may not yet have intensified into criminal acts.
  • Insufficient evidence to meet the criminal standard of proof (workplace investigations threshold is the ‘balance of probabilities’).
  • The inevitable lapse of time between the initial inception of criminal complaint and its final conclusion.

Complainants making allegations of sexual harassment should be entitled to less onerous, less public alternative to the criminal process if that is what she/he chooses.

An effective, timely workplace investigation is a key element of any prevention strategy. They are effective in addressing the cultural and environmental contributors to sexual harassment and in improving reporting rates.

The risks associated with poor (or non-existent) investigations are significant and can compromise the well-being of individuals as well as expose organisations to significant financial, legal and reputational damage.

Adherence to fair procedures and the principles of natural justice is essential during any workplace investigation. The Employment Equality Act 1998 (Code of Practice) (Harassment) Order 2012 recommends that, in order to ensure impartiality, objectivity and fairness, the appointment of an external investigator may be necessary.

Regardless of whether the investigator is internal or external, the competency and training of the investigator is crucial. The role of the investigator is to gather and validate all relevant information, including information that substantiates the allegations and information that rebuts the allegations.

“I received one phone call from an external investigator”. “I was expecting great things from this formal complaint because it had been bigged up to me that it was going to be a very arduous process,” (Doctor Ní Shúilleabháin referring to her formal complaint to the HR Department).

In order to gather accurate, reliable information, interviews need to be conducted with the complainant, the alleged perpetrator and other relevant witnesses. Many investigative outcomes will be determined by the credibility or otherwise of the parties or witnesses. A core function of the investigator is to assess and corroborate the accounts provided and to address any inconsistencies or discrepancies. High level forensic interviewing skills are essential.

Any attempt to undermine a case or any external scrutiny will focus on the fairness of the process to all parties. It is crucial that investigations be conducted professionally, independently, transparently and that fair procedures are followed.

Good investigation practices will lead to legally defensible outcomes, regardless of what the investigation uncovers. Good investigation practice will not be achieved without the deployment of skilled, experienced, appropriately trained investigators.

A core role of the investigator during the investigation will be to conduct investigation meetings with your staff – the person reporting the allegation, witnesses to alleged events, and the person responding to the allegation. The conduct of these meetings is key to the way those persons involved in the investigation process (your employees/charges) perceive the fairness and transparency of the investigation process. Establish what training and experience the investigators have in conducting empathetic, open-minded cognitive interviewing type meetings.