Managing conduct and culture in practice – the challenges

In the previous article, Why conduct and culture at work matters more than ever, we looked at why businesses need to address inappropriate workplace behaviours in view of the current level of focus on this, both from external bodies such as regulators and government, and also from employees and society more generally.

However, in practice, investigating such issues can be challenging, particularly where they have not been well addressed previously, and where the necessary skills to do so may be lacking. Where allegations of inappropriate conduct have been raised, an employer owes obligations to all staff involved in the process and it can be easy to overlook the fact that all parties need support.

Any investigation needs to be handled sensitively, particularly where sexual harassment is alleged. It should be dealt with as promptly as possible, both to reassure the affected employee that it is being taken seriously and also so that the alleged perpetrator is not left in limbo for too long, uncertain of their ongoing employment status. That said, whilst speed is important, so too is following a proper and thorough process – hasty investigations can lead to poor outcomes, particularly where salient facts are not taken into account, and witnesses with relevant information are not questioned.

Some employers are appointing independent external investigators in such cases, so as to ensure an impartial investigation and to take away some of the natural embarrassment for all parties at having a senior person from the same business investigating such personal issues. Even where this approach is not adopted, those investigating internal complaints need support and guidance from HR and often from lawyers (internal or external) in order to ensure that they properly understand what they are being asked to investigate and how both internal HR policies and the law define bullying, harassment and sexual harassment. They may also need assistance in identifying who should be interviewed and what documents should be reviewed, including where appropriate, any electronic communications.

Employees raising complaints are often nervous, ashamed and fearful of the consequences for their career. Sometimes, they find that others raise complaints on their behalf, which can be even harder to deal with as they may have confided in a trusted colleague not expecting them to take matters into their own hands. Employers who hear of allegations this way must remember that they owe a duty to the wider workforce to provide them with a safe place of work and should as a general rule therefore investigate the matter in any event. They should however bear in mind the additional sensitivity of the situation and will need to explain the reason for their decision to the affected employee. The person raising the complaint on another’s behalf should also be supported and reassured that no adverse consequences will flow for them as a result.

Wherever possible, both the affected employee and alleged perpetrator should each be provided with an independent support person or “buddy”, outside HR and the investigation team, to ensure that their interests are protected. Thought also needs to be given to the working environment – can the individual and the alleged perpetrator continue to work together? Again, this should be handled with care, and needs to take into account the nature of the allegations. Moving the individual without giving proper thought risks them feeling punished for their involvement. Moving the alleged perpetrator can lead to allegations that they are being treated as guilty before the investigation has even started. Often, they are in senior roles with management or supervisory responsibilities and re-allocating these and ensuring business continuity can be a challenge if they are removed from their role.

The team members of both the person bringing the complaint and the alleged perpetrator can also be affected during any investigation – whether by any related absence, temporary redeployment or simply by seeing the impact that the situation is placing on them. Whilst maintaining confidentiality around the process and actual allegations themselves, thought should be given as to how best to communicate with and reassure the affected colleagues so that they can understand the situation and not inadvertently create further issues, through their actions or inactions.

If the perpetrator is a personal licence holder or occupies a qualifying position in a small-scale operator and the investigation results in the imposition of a disciplinary sanction for gross misconduct – or if the perpetrator resigns after disciplinary proceedings for gross misconduct have begun – bear in mind that this will be a “key event” which must be promptly reported to the Gambling Commission.

Given the continued focus on culture and conduct in the workplace, it is likely that the need for internal investigations will only increase and employers would do well to review existing processes now, and where necessary invest in them further in order to ensure that they are as well-equipped as possible to meet this challenge going forward.

Marian Bloodworth is an employment partner at boutique technology and financial services law firm Kemp Little LLP. She advises regularly on how best to handle allegations of inappropriate conduct, including sexual harassment. She also acts as an independent investigator.