Whistleblowing v grievance: how should sexual harassment be raised?

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Following high-profile allegations of sexual harassment by staff, employees are now more empowered to speak up about inappropriate behaviour than ever before. But how they raise their complaint also dictates how an organisation should handle it. Catherine McGrath explains.

The #MeToo movement has increased awareness of sexual misconduct and harassment at work, with employees now more able and willing than ever to report such matters. But how should these complaints be raised and who should investigate them?

Traditionally, complaints of sexual misconduct and  harassment have been raised and dealt with as a HR grievance. But more recently we have seen an increase in the number of complaints raised via whistleblowing procedures, perhaps reflecting the increasing ‘speak up’ culture at work.

Anonymous whistleblowing hotlines are often an attractive reporting option for employees wishing to raise issues about misconduct from those in positions of power, and it seems likely that there will be an increase in the number of allegations raised through this route. Without an anonymous reporting route, the fear of retaliation may prevent individuals from coming forward.

Investigating the issues

How an organisation deals with the complaint, and how it investigates, will depend on how the issue has been raised.

Whistleblowing investigation

If somebody has “blown the whistle”, then the allegations might be investigated by the legal and compliance functions rather than HR. Some organisations seem to prefer to consider issues under their whistleblowing procedures – this may be due to a perception that interviewees will be more forthcoming if interviewed by lawyers and compliance, enabling the investigation to progress swiftly.

There is also a perception that a whistleblowing investigation is more easily controlled and kept confidential, particularly where lawyers are instructed to carry out the investigation on a privileged basis (albeit complete confidentiality can never be guaranteed – in particular, factual interview records are unlikely to be covered by legal privilege and as such would be discoverable).

Although legal and compliance departments may take control of whistleblowing investigations, it would be short sighted not to also involve HR. For the investigation to be effective, those leading it need a good understanding of how to recognise sexual misconduct, and this is where HR input and experience is invaluable.

The absence of HR involvement can lead to complaints of harassment being missed. For example, take a complaint of harassment under the Equality Act, where the alleged perpetrator’s intention is irrelevant if the behaviour has created an intimidating or hostile environment for the complainant. An investigator that does not appreciate this nuance, and looks only at what the alleged perpetrator intended, may come to conclusions that are contrary to established law and therefore expose the organisation to legal risk.

Grievance investigation

Other organisations take the view that conducting a privileged investigation risks giving the wrong impression that the organisation is trying to cover up matters by cloaking the matter in confidentiality. This suggestion is likely to have significant reputational implications for an employer and this leads many to favour the more transparent approach offered by the traditional HR/grievance route.

For the investigation to be effective, those leading it need a good understanding of how to recognise sexual misconduct, and this is where HR input and experience is invaluable.”

It is also worth remembering that employees have a right to raise a grievance. While a whistleblowing investigation might be appropriate where the complaint is specifically raised under the whistleblowing procedure or through a whistleblowing hotline, employers should be wary of depriving staff of their right to the grievance process unilaterally, where the employee has specifically chosen to go down the grievance route.

Upskilling the investigator

Whoever the investigator, they must be properly equipped to undertake a thorough an unbiased investigation. Some organisations have pro-actively taken steps to upskill and train relevant people on best practice methods of investigating complaints of sexual misconduct and harassment. This is a sensible step given the particular sensitivities involved and the need to adopt the right investigative approach.

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Not only do investigators need to know what harassment is and how to spot it, but they must also understand how the imbalance of power between complainant and alleged perpetrator might be relevant and be confident enough to test the evidence before them.

It is also crucial that investigators avoid a ‘victim-blaming’ mind set and do not stray into irrelevant and unhelpful lines of questioning which could prejudice the fairness of their investigation and damage the organisation further.

With individuals more likely than ever to report sexual harassment at work, organisations need to review their arrangements to ensure employees feel confident enough to raise issues – and that when they do their allegations are robustly investigated and appropriate action is taken.

Catherine McGrath

About Catherine McGrath

Catherine McGrath is a senior associate in the employment team at global law firm Bryan Cave Leighton Paisner.
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