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Looking Into Workplace Investigations, Part 4 – Respecting the Rights of Bullies and Harrassers (UK)

When drawing up your preliminary note of what you need to know as the product of your investigation, remember that the people being investigated have rights too.  Some we will come to later in this series, including confidentiality and a fair process, but the first and most fundamental part of a fair “trial” is knowing what you are accused of.  Of course, the investigation is not a trial as such, but since it may lead on to relatively public steps such as suspension or disciplinary procedures, that right should be treated as engaged from the start.

This does not mean just understanding the allegations in generic terms – harassment, bullying, failure to comply with a legal obligation, but very specifically.  That means the detail that you would want to know if it were you under the microscope, granular enough to give you a reasonable opportunity to admit, deny or explain specific instances.  The sort of detail which allows you a reasonable chance to recall particular incidents or to justify or mitigate particular words or decisions by reference to other circumstances at the time.  The sort of detail you would be entitled to if the position had gone beyond investigation and was now a full-blown disciplinary.

Therefore the investigator must start by considering whether he/she already has that level of detail in the allegations raised or the complaint made, and if not, by then seeking them from the person whose disclosure led to the investigation.  Bullying and harassment and breaches of legal obligation are not a state of mind or a period of time or an emotion engendered in the recipient, but the product of specific acts or omissions by one or more individuals, with the intent behind them to be assessed separately  Therefore, it is important for the investigator to ask for those specifics.  When you say your manager bullied you, what exactly did he say?  What specific acts or decisions on his part are you referring to?  When did they happen?  Are there any relevant documents or witnesses?  Why do you say that your manager has it in for you?  Why precisely do you consider that conduct to be a product of your race, gender, age, etc?

It can appear unfeeling to respond to a complaint or disclosure with a barrage of follow-up questions, so much lies in the tone of how they are put.  This is not something to do aggressively or sceptically but as a necessary part of a full and fair process.  Ultimately, there are at least four good reasons for pushing for these details upfront:

  • You need to be sure that you have something meaningful to put to the alleged wrongdoer, something they can reasonably be expected to respond to with more than a bemused look and a shrug;

  • the complaint is for the employee to make – if as investigator you find that it is you who is looking for material to put to the “accused”, then you have stepped from judge to prosecutor;

  • it is not for you to determine what might reasonably be eating the employee – not everyone has the same triggers, and as a general rule you should not be going into behaviours which, though you might find them a bit iffy yourself, seem not to have been an issue for the employee; and

  • put bluntly, it is usually a great deal easier to allege ill-treatment at work than to substantiate it.  In answer to such a question of a client’s employee we once received the answer “she leant across the table, her eyes flashing” as the totality of the problem, followed many years later in a separate case by an employee who identified a number of witnesses to the treatment she said she had received but asked our client not to speak to them “because they would all deny it”.  Being required to reduce what may be a largely emotional complaint, a matter of impression or suspicion, to dull hard facts can be a deflating experience, but it is still something which your accused employee has a right to expect that you will do before he/she is grilled about it.

Sometimes it is best to ask the questions in writing in advance and give the employee a bit of time to respond to them outside the heat of the investigation meeting.  There is no need to require written responses, especially if that is likely to be a deterrent to an employee unused to expressing themselves in that way.  However, as investigator, you will obviously need to make a full record of the answers, since they will form the basis of your questions to others in the process.

However important those initial questions may be, however, you cannot make proceeding with your investigation conditional upon their being answered.  If the employee chooses not to do that, despite your guidance, they do so in full awareness of the holes which this puts into your ability to find for them the redress which they seek.

Relatedly, be comfortable with the fact that you can only go with what you get.  If you have told the complainant or whistle-blower of your wish for more specifics, then you have done all you can.  While a greater imperative may apply in whistle-blowing cases where there is more at stake for the employer than the employee, for the most part it is not for the investigator to make the complainant’s case for them.  Allegations lacking dates, detail, evidence, witnesses, etc, must necessarily be less persuasive.  When it comes to the old range of reasonable responses, you are fully entitled to take that into account.

© Copyright 2022 Squire Patton Boggs (US) LLPNational Law Review, Volume XI, Number 354
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About this Author

David Whincup Employment Attorney Squire Patton Boggs Law Firm
Partner

Following 10 years at a Magic Circle firm, David has been head of our London Labor & Employment Practice since 1994.

His expertise gained from over 30 years as a specialist employment law practitioner cover a wide variety of employment-related issues, including individual and team recruitment issues, policy and contract drafting, disciplinary and grievance procedures, individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding confidentiality and...

+44 20 7655 1132
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