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Sexual Misconduct in the Workplace ("SMIW") Investigations: Practical Criminal Law Considerations

Posted on 27 July 2022

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Background

In recent years, following the #MeToo disclosures, SMIW investigations have become increasingly common. 

In addition to the potential reputational issues that may arise in relation to allegations of sexual misconduct in the workplace, and the fact the compensation available in discrimination claims in the Employment Tribunal is unlimited, the nature of SMIW allegations (when taken at their highest) are frequently capable of also amounting to criminal offences. This creates additional challenges for the practitioners representing the parties involved: the Complainant; the Employer and the Subject of the investigation. As a result, it is important to factor in the possibility of a criminal investigation (and beyond that, a criminal trial) at an early stage in the investigation: any evidence gathered during the course of an SMIW investigation can be obtained and used by the Police during the course of a criminal investigation and may be admitted as evidence by the prosecution or defence in a criminal trial.

Common Features of SMIW investigations

Each SMIW matter is factually different, but there are certain common features which can help inform the practitioners advising on these matters. 

An SMIW investigation is normally triggered by a formal complaint of grievance by the Complainant to the Human Resources department, or another colleague or body who feels obliged to make a formal report.  This is sometimes the "first report" that the Complainant has made – and therefore has particular evidential significance. 

Ordinarily, the Subject and the Employer will require separate representation. Often, the Complainant may choose to be represented. There are also likely to be witnesses who are not parties to the investigations. 

Issues that are likely to require consideration during SMIW investigations include GDPR and privacy issues, as well as Legal Professional Privilege.

Parallel Criminal Investigation

Due to the inherent likelihood of a parallel criminal investigation by the Police, early identification of the potential issues is crucial. 

The initial report made the by the Complainant may indicate whether on the face of the allegation, a criminal offence may have been committed. Generally, an allegation of a non-consensual sexual act is capable of amounting to a criminal offence under the Sexual Offences Act 2003. 

The initial report may also contain confirmation as to whether a complaint to the Police has been made or will be made in the future. Ordinarily, when a complaint to the Police has already been made, it would be appropriate for the Employer to liaise with the relevant Police force to establish whether the Police have any objection to the Employer conducting an SMIW investigation. The Police may prefer that witnesses are not interviewed before the Police have had an opportunity to speak to the witnesses first. For example, the Police may wish to interview the Subject under caution before the allegations have been put to the Subject by the Employer during the course of an SMIW investigation. Similarly, they wish to conduct a video recorded interview ("VRI") with the Complainant before the Employer has conducted an interview.

Whether there is a criminal complaint or not is likely to impact the advice given to the Subject as to their participation in a SMIW investigation.

The Police may wish to seize and examine electronic devices held by the Subject or the Employer. Alternatively, if there is no Police investigation, the Employer may wish to conduct proportionate investigations of relevant electronic devices in order to understand the wider evidential context to SMIW allegations. 

By retaining and examining electronic evidence at an early stage, the Employer is preserving a body of evidence that may become subject of a criminal prosecution. The Employer may wish to consider getting devices imaged in order to preserve the meta data of the device in question.

Reputational Issues

It is understandable that the Employer may have commercial considerations which inform how it handles an SMIW investigation. 

However, an inadequate or seemingly biased investigation can cause the Employer additional reputational damage. An SMIW investigation that has the appearance of whitewash, or bias against the Complainant, can be detrimental to the Subject as well as the Complainant. Sometimes the complaint about the failure to conduct a proper or fair investigation becomes more prominent than the underlying complaint.

Evidential Issues

Often an Employer may choose to instruct external legal professionals to conduct an SMIW investigation. The general position is that no Legal Professional Privilege would apply to the work product of SMIW investigations.  However, LPP may apply to the advice provided to the Employer by lawyers.

In circumstances where a criminal complaint is made, but the Police are not proactive in conducting the investigation, those conducting the SMIW investigation on behalf of the Employer can find themselves unwittingly taking the lead in a de facto criminal investigation. 

A criminal investigation or trial may lead to close examination of the evidence gathered during an SMIW investigation. Experienced criminal practitioners are likely to scrutinise the materials gathered, particularly, the forensic enquiries or record keeping by the investigators. This can be particularly uncomfortable for the Employer if there is a suggestion that the investigation lacked rigour or independence. 

A common feature of SMIW investigations is that notes are taken of the interviews that are conducted. There is frequently a dispute about the accuracy of the notes.  Inadequate note taking can provide a perception of a less than rigorous investigation. Those conducting SMIW investigations may wish to consider whether it would be appropriate for video recorded interviews to be conducted – in order to avoid the possibility of a dispute as to how the interview was conducted. Internal investigators could adopt the same approach that Police investigators have used for years, by following Achieving Best Evidence ("ABE") interviewing techniques.

Conclusion  

Whilst SMIW investigations are increasingly common, the challenges raised by the nature of the complaints is evolving. Employers are becoming increasingly aware that they will be judged on how they respond to and deal with complaints. A partisan investigation may cause additional reputational damage and lead to a separate complaint. Our experience is that a key feature of SMIW investigations is the need for collaboration between different practitioners who have the appropriate experience in handling complaints of this nature in a sensitive and understanding manner.

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