Independent workplace investigation for NHS employer
Handling allegations of sexual harassment when the accused denies them can be really difficult and many organisations struggle to demonstrate that after hearing a complaint, they have acted fairly and reasonably, and in a timely manner. Bringing in independent support from Kraft HR experts means employers can avoid costly legal proceedings if the case were to go to an external arbitrator such as ACAS or an employment Tribunal, and more importantly, will provide a safe and productive working environment for their employees.
Employees involved in workplace investigations can become stressed and can experience depression, low mood, illness and anxiety. Managers often are overwhelmed and don’t know who to believe or how to look for evidence that proves or disproves the allegations. HR teams don’t have the resource to manage unplanned investigations and deliver full reports to quick timescales, or train up colleagues so they are able to provide a fair outcome decision or hear an appeal correctly.
Even if the company have clear policies and processes, a lot can go wrong very quickly.
As you can see from the numerous reports in the media and press, it is very damaging for cases to progress past the initial investigation.
Firstly, their employees are often emotionally and financially drained by the process. Delays and appeals against unfair decisions compound the impact of the original issue for the employees – whether they are the accused, complainant, a witness or a member of their team working in a tense atmosphere.
Secondly, the impact for organisations is also devastating, particularly for NHS and healthcare organisations where staff shortages and patient waiting lists are already at all time highs so service disruption further complicates recovery from the Covid-19 pandemic. The legal costs of going to ACAS or an employment Tribunal can run into hundreds of thousands of pounds, and though many organisations are insured, their insurer will want them to prove they have acted fairly and reasonably from the minute the complaint was made.
UPDATE: a new law from October 2024 has now put an obligation on employers to go to reasonable steps to prevent sexual harassment in the workplace from other employers, clients, operating partners, patients and other members of the public. More about this later, but for now, a thorough and timely investigation of complaints is now even more important so that employees feel safe to make reports, and organisations can learn and make proactive changes as a result of learning from these.
We have found during hundreds of cases we’ve investigated that employers tend to make some similiar mistakes.
Firstly, an employer doesn’t listen to the complainant. For a variety of reasons, the complaint is not logged formally, and they fail to follow their own bullying and harassment policy.
When it is one person’s word against another’s, many employers and HR team find it very difficult to find evidence that proves or disproves that the incident happened.
Kate* raised a formal grievance at the NHS Trust she worked at, accusing a colleague, Tim*, of sexual harassment at work. Kate began taking sick leave due to stress caused by this situation.
The NHS Trust interviewed Tim who denied the allegations. The NHS investigating officer couldn’t decide which person was telling the truth so decided not to take action against Tim.
Kate was distressed by this – she appealed the decision and followed correct procedure by contacting ACAS to inform them that she wanted to take the Trust to an employment tribunal. ACAS offers employees and employers free, impartial advice on workplace rights, rules and best practice. The NHS Trust quickly asked Kraft HR Workplace Investigations to conduct an independent review of the case and advise whether the original investigation and decision were sound.
*Kate and Tim are not their real names.
Read a summary of what Kate told her employer:
‘I had a brief liaison with Tim following a work conference. After that one time, he made further advances but I declined them. But he wouldn’t take no for an answer. I’ve got phone messages that prove this. Eventually I had to block his number as he kept asking, despite me being really clear in my messages.
‘Tim started to approach me at work. He brushed past me inappropriately in the corridor. He changed his shifts so that we would be working on the same early or late shifts together. I was really worried that his behaviour was getting worse – it was escalating, despite me rejecting his advances.
‘Tim started making inappropriate comments to me. Then he tried to kiss me when we were alone in the office. I was so frightened – I’d made it really clear that I wasn’t interested. So I decided I had to complain about him to HR.’
When asked whether anyone had witnessed the alleged sexual harassment, Kate said “He is always very careful to pick his moments.”
Tim denied sexually harassing Kate and refuted all her allegations. He did confirm that he was in contact with Kate outside of work: he said the interaction after the work conference was “… a bit of fun that neither of us had taken seriously”.
Tim provided HR with evidence of his exemplary performance at work and threatened to resign if the investigation continued.
The Trust did not think there was sufficient evidence of sexual harassment. In their view, the relationship between Tim and Kate was a private matter. The outcome from the internal Deciding Officer was to:
The NHS Trust didn’t know how to look for evidence that sexual harassment at work had taken place. No one else had witnessed the alleged incidents: it was her word against his. They felt they had protected Kate sufficiently by changing her working hours. So they asked Kraft HR Workplace Investigations for advice in advance of the appeal hearing with ACAS.
We reviewed the case and suggested a new investigation could involve:
The Trust asked us to investigate.
Our investigation of whether sexual harassment at work took place found evidence that gave a clearer picture of the situation. We weighed up the probability of both versions. We concluded that:
We suggested a series of further steps that would offer a fair and reasonable outcome. Being fair and reasonable is really important as ACAS and Employment Tribunals will consider whether the employer has been fair and reasonable. The employer accepted our recommendations and we then supported them with the appeal hearing and managing the outcomes with the employees.
With our service and support, the employer was able to bring the case to a close with no further appeal or escalation. Their actions could encourage people to feel confident to speak up in the future and help the Trust prevent harassment.
If the NHS Trust had carried on with their original outcome, they would have lost at Tribunal. This is because their original investigation did fully test the details provided in both the allegation and the rebuttal.
When a team presented ‘alternative facts’ about a serious safety breach at work, were their perspectives different, or was one of them lying?
