8 Tips for getting sexual misconduct in the workplace investigations right

The importance of addressing sexual misconduct in the workplace is currently under the limelight, with the new Worker Protection Act coming into effect on October 26 2024. This act requires employees to take ‘reasonable steps to prevent sexual harassment of employees.’ 

However, what happens if an incident has already occurred? Whilst you may have reporting channels in place, it can be difficult to navigate ‘he said/she said’ allegations where it is one person’s account of an event against the other, with minimal witnesses. 

So, how do you make fair findings in these difficult cases? 

At byrne·dean, we provide expert solutions to help you protect employees from sexual harassment, mitigate risk and create a genuine, speak-up culture. 

In this post, you will discover eight top tips for getting sexual misconduct investigations right.

What is sexual misconduct?

Sexual misconduct is unwanted conduct of a sexual nature that violates an individual's boundaries as well as professional and legal standards. It encompasses a range of actions such as unwanted sexual advances, harassment, sexual assault, abuse of power and inappropriate behaviour in professional settings. Behaviour is non-consensual and makes the affected individual feel uncomfortable and violated. 

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“A person harasses another (B) if—A engages in unwanted conduct related to a relevant protected characteristic and the conduct has the purpose or effect of—violating B's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment.”

‍Equality act 2010, section 26

8 top tips for getting sexual misconduct investigations right

Here are eight key considerations our Resolution team deploys to ensure a thorough sexual misconduct investigation.

1. Standard of proof

First, it is important to understand what standard of proof should be applied. In most workplace investigations, this is “what happened on the balance of probability”. In other words, what is more likely to have happened? It could be 50.5% more likely. That is enough.

The evidence then needs to be assessed to make findings.

2. Credibility assessment

Consider what can be done to verify the overall credibility of the two accounts. Management or HR could review the accounts to verify the facts claimed at the interview. For example, the consistency and accuracy of what the individuals have said in the past could be examined and compared to previous investigations. This is useful as some people who are convincing liars are unable to maintain fabricated accounts over time. Consider how accurately their description of a place, person or situation reflects the reality.

3. Behaviour analysis

Look at their behaviour before and/or after an event, as this can be relevant – is it likely that someone would have behaved as they did if X or Y were the case?

4. Motivations

Consider each person's motivations – why would someone make this up? Their evidence may carry less weight if they are shown to have an ulterior motive to be saying one thing or another.

5. Body language 

Assess behaviour during the investigation – things may be reflected in their body language that contradicts what they say. However, these types of assessments and interviews can be stressful; it is important not to (mis)apply a cultural lens around how they may naturally act.

6. Documentary evidence

What does any documentary evidence tell you? Does it align with the alleged events, such as photos, emails, WhatsApp messages, social media communications and receipts? Does the documented evidence show how people felt around that time? Or what they did before or after the event?

7. Patterns of behaviour

Are there any proven patterns of behaviour that could be relevant? For example, does anyone involved have patterns noted in past HR records? Has either party been accused of sexual harassment on previous occasions?

8. Witness testimonies 

Although witnesses may be minimal, people may have evidence of a person’s behaviour before or after an alleged event. Use documentary evidence to track down other witnesses who may have seen the parties involved on either side of the time frame. 

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FAQ’s

What is classed as sexual misconduct at work?

Sexual misconduct at work includes a range of inappropriate, unwelcome, or non-consensual behaviours of a sexual nature that create a hostile or unsafe work environment. This includes verbal, non-verbal and physical harassment, such as making sexual comments or jokes, inappropriate innuendos, spreading rumours about someone’s sexual life, sending sexually explicit messages and images, making suggestive gestures, and making unwanted physical contact. 

How should I deal with sexual comments in the workplace?

If you feel confident and safe to do so, you can address the behaviour directly with statements such as “That comment makes me uncomfortable, please don’t say that again.” When addressing the issue, keep a professional tone and avoid escalating the problem with anger. You can then note down the date, time, location and details of the comment, as well as any witnesses, which is vital if you decide to file a formal complaint. 

You can then report to your line manager and follow your organisation's reporting procedure. If necessary, you can request a formal investigation. If you feel the issue is not handled appropriately within the company, consider seeking advice from a lawyer or contacting external organisations like the UK's Equality and Human Rights Commission (EHRC).

Can you be sacked for sexual misconduct?

Yes, you can be dismissed from your job for allegations of sexual misconduct. Sexual misconduct is considered a serious violation of workplace policies and can have significant legal implications for both the individual involved and the employer. Often, sexual misconduct falls under gross misconduct in an employment tribunal and is a common reason for summary dismissal, which means termination without notice. 

How do you respond to sexual allegations at work?

Responding to allegations of sexual harassment in the workplace requires a careful and structured approach to ensure that the issue is handled fairly, professionally, and in compliance with legal requirements. We recommend working with workplace dynamics experts to resolve allegations with a non-escalating response and, if necessary, to request legal advice.

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Summary: sexual misconduct in the workplace

Sexual misconduct investigations in the workplace can be challenging to navigate. In environments where sexual offences have taken place, employees may experience not only the trauma of the harassment but also the stress of having to report it. Plus, if the allegations are true, this will no doubt impact a person’s career, which adds to the pressure of getting the investigation right. However, fair findings can be found in these complex, emotional cases using the eight top tips above.

Need further support to carry out a considered workplace investigation? 

At byrne·dean, we approach investigations with impartiality, fairness and confidentiality. Offering our expert advice on workplace concerns, we find the path through sexual misconduct investigations, guiding you to clear, honest resolutions. We work transparently, bringing diverse experience across employment law, HR and employee relations.

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