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Inappropriate behaviour… can you handle it?

Blair McPherson - former Director, Author and Blogger

The way allegations of sexual harassment against a senior politicians were handled by the Scottish government may not be as big a deal south of the boarder but the issues will certainly be familiar to HR professionals everywhere.

As a manager I acted as an investigating officer on many occasions. As a senior manager I commissioned a number of investigations and on one occasion was my self the subject of an investigation. Having experienced the process from different perspectives I can say that what every one wants is a fair, thorough and swift process but these objectives don’t always go hand in hand.

When allegations of sexual harassment are made by an employee HR routinely get involved. Whether or not the allegations involve a senior manager it is usual to appoint an independent investigator(s). Which raises the first question who is independent? A senior and experienced person from with in the organisation’s but outside the line management , may be together with someone senior from HR, or a suitably qualified person from out side the organisation? The decision on who to appoint to investigate is in my experience usually made by the senior manager that the allegation has been reported to. This might be the head of service or relevant director. If the allegation involves a director then the chief executive and chair of the board would commission the investigation.

Selecting the right person(s) is crucial to the credibility of the process.  Some one with experience not only of investigating allegations of misconduct but this type of allegation which may come down to perceptions, sensitivities and a judgment about the credibility of both the complainant and alleged harasser. In an allegation of sexual harassment the gender of the investigator is more relevant than otherwise might be the case.

Not only might the choice of investigator(s)effect the out come but so to will the remitt set by the commissioner. Is the investigation to limit itself to the specific incident(s) bearing in mind that it’s nature may mean there are no witnesses. Or is the investigation to approach others who have work with the accused to establish if there is a pattern? If the brief is too broad it could be perceived as a witch hunt ,if that’s not an inappropriate expression in the circumstances.

What if the accused when interviewed claims that their behaviour was no different to other managers, not a strong defence but does this give the investigation license to examine the culture within the department /organisation? As a guiding principle if the investigator, during the corse of their interviews, believes there is justification to widen the investigation they should go back to the commissioner to get their remit broadened. The commissioner must then way up whether natural justice is best served by broadening out the investigation against the inevitable delay this will cause, bearing in mind their will be pressure from all directions to come to a swift conclusion.

This may just be the start of a lengthy process. The investigator’s final report will identify whether in their opinion their is sufficient evidence to warrant a formal disciplinary hearing. The commissioner will then decide whether they accept the report and its recommendation. It would be unusual for them not to but as the case in the Scottish government shows it’s not just about the strength of the case but also about whether the correct process has been followed, whether there is any evidence of bias and a judgment about the implications for the organisations reputation.

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