Horses for Courses
Horses for Courses
The recent news about Primark’s CEO Paul Marchant stepping down following allegations of inappropriate behaviour towards a woman in a social setting serves as a reminder that companies are fast moving towards an era in which, as stated by George Weston, chief executive of ABF, the company that owns Primark, “culture has to be, and is, bigger than any one individual…. colleagues and others must be treated with respect and dignity.”
Investigators are seeing a rise in reports of unacceptable behaviour in the workplace, as businesses make themselves compliant with the Workers Protection Act (WPA)
In the words of John Kirkpatrick, Chief Executive of the Equality and Human Rights Commission, the body responsible for compliance with WPA “Sexual harassment continues to be widespread and often under-reported. Everyone has a right to feel safe and supported at work……We will be monitoring compliance with the new duty and will not hesitate to take enforcement action where necessary.”
So where does this leave the internal investigator or external investigators called in to conduct investigations of this nature?
In house legal may be the first port of call when something of this nature is reported, however, it is my firm belief that without training and the necessary qualifications, solicitors and barristers generally make very poor investigators, because the skills that they have acquired throughout their professional career, by default, lead them to have a hypothesis in mind (generally one which supports their client) and then look for the evidence which proves or disproves their hypothesis.
I have delivered training and qualified a number of lawyers and barristers who are now much better equipped to take on investigations of this nature – many of whom commented that the type of training and qualification should be delivered early in a legal career, such was the importance of having acquired the skillset to their role.
HR are in a rush to comply with the preventative measures required by the WPA but in many cases not well equipped to investigate such matters, which if reported to the police would constitute a serious sexual indictable offence (to be tried at the Crown Court). Traditional methods as taught by the CIPD can fall short of what is required, and employees’ faith in the impartiality of the HR/ER department can sometimes be low, sometimes unjustifiably so but low all the same.
There are some excellent proactive investigators out there in the private investigator field and the Association of British Investigators (ABI) are taking some excellent steps in bringing oversight to that industry, including their recent code approved by the ICO in relation to data handling. I would argue though that investigations into sexual harassment are reactive investigations, and not best suited to many investigators from a proactive background, unless they have received proper training and qualification
Many corporate bodies employ internal investigators. Traditionally compliance focused on financial practices and as such corporate internal investigators were generally recruited from public sector fraud investigators, with almost every investigator job vacancy listed ACFE qualifications as essential or desirable, to the extent that police officers at the end of their careers focused on gaining a ‘fraud ticket’ in preparation for a second career in the corporate word.
Investigations into sexual harassment are an entirely different type of investigation with trauma-informed and person-centred techniques at the core of the skill set required of investigators.
Many incidents of sexual misconduct occur in private with no witnesses, meaning that the accounts of the relevant parties must be gathered with as little contamination as possible so that they may be compared for credibility, before the investigator can, and must, make a finding of which account is more likely, on the balance of probabilities. This requires specialist investigative interviewing techniques based on PEACE as a framework but not simply blindly following a model introduced in the 90’s.
I am and always will be of the opinion that different types of investigations require different skill sets. Those skill sets can only be taught through credible and meaningful training delivered by experts. This is already accepted practice in serious and complex fraud investigations with a prerequisite being training and qualification. The same prerequisite of training and qualification needs to be embraced in the investigations into sexual harassment.
As investigators we are entering an era where in relation to sexual misconduct, faith in the police and wider criminal justice network is at an all-time low. Employees are empowered, through better culture and reporting channels to submit more reports of sexual misconduct requesting that their employer investigate them, not the police.
Whilst maintaining that general purpose investigators can investigate low level fraud and low-level sexual harassment when the investigation becomes more complex and the potential outcomes more serious, it’s time to allocate the case to a specially trained and qualified investigator – whether that be a properly trained and qualified lawyer, HR, internal or an external investigator.
Level 3 Certificate in Investigative Interviewing (RQF) for established Lawyers/HR/investigators wanting to upskill in conducting interviews.
https://find-a-qualification.services.ofqual.gov.uk/qualifications/60182593
Level 3 Certificate in Investigations (RQF) for those new to the role of investigations.
https://find-a-qualification.services.ofqual.gov.uk/qualifications/61035026
Mick Confrey
Intersol Global
