Being an employment lawyer is a very human job as, on a daily basis, you’re dealing with the challenges faced by people – and people make mistakes. In her role as partner at Farrer & Co Eleanor Rowswell (pictured) works to advise people on how best to deal with those same mistakes as and when they happen – and it never fails to surprise her what can go on within an organisation and the ripple effects it can have.
Rowswell co-leads Farrer & Co’s senior executive practice, and among her key responsibilities is her role in advising senior executives and employers in the context of investigations into workplace misconduct allegations. Misconduct and abuse allegations have come under the spotlight in recent weeks after the Lloyd’s Enforcement Board levied its largest ever fine on a Lloyd’s MGA - but for Rowswell and her team, significant shifts have been occurring over the past few years.
“Several years ago there was a seismic shift in relation to perceptions of appropriate workplace behaviour,” she said. “That really came about as a consequence of #MeToo, of people speaking out and a lot of disclosures being made around historical and current issues, with a light being shone particularly on sexual harassment. That’s extended over more recent years, with more of a focus on race discrimination and harassment, partly following greater public awareness as a consequence of the Black Lives Matter movement.”
Over the course of the pandemic the Farrer & Co team has also seen how the move to home working has come with its own misconduct implications. Understandably there have been reduced cases of face-to-face harassment but the boundaries between professional and personal lives have become increasingly blurred.
Rowswell has seen cases where individuals have been using their work hardware to send inappropriate communications or used personal devices to send work documents or confidential information to personal accounts. In other cases, workers have retained documents containing confidential information, and are alleged to have done so for improper purposes.
“And very often the answer to that question by employees or executives is that documents were needed at home for a legitimate purpose because we’ve all been working from home,” she said. “And the organisation is alleging it has been stolen to send to a competitor or use in new employment. These are the sorts of issues that have come up more during the pandemic though now we’re all getting back to the office, we’re seeing more of the face-to-face issues as well again.”
The Farrer’s team supports investigations into misconduct in a myriad of ways including advising an employer on how to set up a robust investigation process, conducting independent investigations into misconduct allegations, advising senior executives facing investigations into alleged misconduct and advising individuals raising complaints or who are witnesses to misconduct.
Sharing her top tips on how an employer should conduct an investigation, Rowswell noted that the process all starts with an allegation or complaint being raised or otherwise coming to light. The first thing to do, she said, is to establish whether there is a policy already in place for dealing with the concern. If so, organisations should follow their policies and be aware that, depending on the nature of the concern, different protocols will need to be raised.
“Depending on the complaint, there might be a whistleblowing policy, or there might be a grievance procedure if it’s a complaint by an employee about their own treatment,” she said. “There might be a specific bullying and harassment policy tailored to dealing with those types of complaints. So, you need to look at what the procedures are within the organisation, if there are any, and work out the most appropriate one to deal with the issue.
“Very importantly, you then need to make a decision fairly early on as to whether there actually needs to be a formal investigation or not. In some cases, there doesn’t need to be a sophisticated, formal investigation. Sometimes, less serious concerns are much better addressed informally in the first instance and, indeed, the person raising the concern might not want a huge investigation. So, that’s the first thing that needs to be considered.”
In the event a formal investigation is deemed necessary, the next step is to identify your investigator. Ideally, she said, you’ll want somebody who is impartial and sufficiently senior to investigate the matter. This can be difficult if there is an allegation against the chief executive, for example, and, in such cases, you need to consider if there are individuals on your board of directors who can conduct the investigation or whether you will need to bring in an external third-party.
The Farrer & Co team highly recommend that if you are dealing with allegations against somebody very senior, or sensitive allegations, that the person selected to carry out the investigation is sufficiently qualified to do so and equipped with the tools and necessary expertise to handle the investigation fairly.
“Once you’ve got your investigator, your investigation needs to be planned,” she said. “This could be very straightforward or it could be very complex. You’ll need to, first of all, define what is being investigated, what are your terms of reference? Is the complaint specific enough to identify a list of allegations where findings of fact need to be made? Or is that something that needs to be agreed upon with the person who is complaining, and further information sought before you can work out your terms of reference?”
Once the terms of reference are clear, she said, the investigator will need to evaluate who they need to interview. That includes not just the person raising the complaint and the subject of the investigation, but also any witnesses not just to the complaint but also to any interactions between the accuser and the accused.
Also requiring consideration, Rowswell said, is any other evidence - whether that’s documentary evidence, email records, electronic records, CCTV, etc. The investigator must also think carefully about how this evidence should be preserved and also whether there are any data protection implications around gathering and preserving that evidence.
“Ideally, you would have some form of project plan so there would be clear timeframes and these will be communicated to the person bringing the concern as well as the individual facing the allegations because it’s incredibly stressful,” she said. “And if, for some reason, it’s not possible to meet those timeframes, it’s important to keep people updated and explain why.”
At the end of the investigation process, typically the investigator will produce an investigation report – and these significantly vary in quality. While it isn’t always done, Rowswell said that when she represents executives facing misconduct allegations she often pushes to allow the individual facing allegations the chance to comment on the evidence that is provided during the course of the investigation, ideally before the report is concluded. That’s not always done but it provides for a more robust report.
“A good investigation report will typically explain the findings of fact, in relation to the allegations that are being investigated. But as importantly, explain how the evidence has been weighed up, and why the investigator has concluded particular findings, including why they may have preferred one person’s evidence over the other. Because sometimes you get very short reports, there isn’t any explanation of that and it looks like the investigation has completely ignored or overlooked certain evidence.
“And if that can be properly explained in the report, why an investigator has preferred someone’s evidence over another, where the inconsistencies have been and why they’ve concluded as they have - that’s a much more satisfactory report. And also, from an employer’s perspective, it’s much more difficult for that sort of report to be challenged in court.”
