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Jim Moore

Hamilton Nash

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Russell Brand allegations highlight trend of shoddy workplace investigations

The accusations against Russell Brand have reignited the debate about reporting inappropriate behaviour at work.

If you’ve been following recent news, you’ll have seen that TV presenter and actor Russell Brand has been accused of multiple incidents of sexual assault, some of which are alleged to have occurred while he was working on high profile TV shows. 

Alex Mahon, chief executive of Channel 4, said the allegations showed how “terrible behaviour towards women was tolerated” in the TV industry. 

This follows the recent high profile case of Philip Scofield, who resigned as presenter of This Morning over allegations of an improper relationship with a young colleague. 

Even though the allegations relate to individuals, the organisations concerned have faced criticism for the lack of decisive action or proper investigations. 

Of course, it’s not just in TV that this kind of issue occurs. So what should organisations be doing to ensure their processes are robust enough to deal with toxic situations like these?

Full and thorough investigations

Saying that all allegations should be investigated is stating the obvious. That doesn’t always happen, however, and when investigations are carried out, they can sometimes be cursory.

When former McDonald’s CEO Steve Easterbrook was dismissed for an affair with an employee, the company’s HR department found itself included in the widening investigation after managers accused them of ignoring complaints about Easterbrook’s conduct with other employees.

Outcomes sometimes unravel because the investigator did not rigorously verify the statements made and evidence that was provided.

There are also several case law examples where employment tribunals have ruled against employers because decisions were based on inadequate investigations.

Carrying out a workplace investigation is a skilled role, and comprehensive preparation is essential, however, many managers are asked to conduct investigations with little or no training. 

The art of the investigation

The objective of any investigation meeting is gathering information. The more the individual says, the better your position as an investigator:

  • You gain more detail about their narrative, motives, and assertions.
  • You are more likely to identify inconsistencies, story revisions and contradictions.

A skilled investigator is able to manage any emotions and mistrust in the interviewee. A few simple things help with first impressions and can help the individual lower their guard:

  • Avoid overly formal or stern appearance, speech, and mannerisms which can be intimidating.
  • Adopt a warm demeanour: thank them for attending, offer a drink, and build rapport.

To see the problem with formal speech, consider the difference between these two opening lines:

  • “My role is to ensure a fair process and hear what you have to say.”
  • “This meeting is to investigate the allegations against you.”

The first version is more likely to encourage engagement, whereas the second is more likely to generate a defensive attitude.

Once the individual has been put at ease, you can help gather information with these techniques:

  • Ask open questions using words like ‘tell’, ‘explain’, ‘describe’ (TED).
  • Use active listening to encourage further disclosure.
  • Probe for motivation, asking ‘What made you feel that way?’ or ‘Why do you think that happened?’

Using evidence strategically

Interviewees may try to guess what evidence you have from your questioning. If they try to adjust their narrative to what they think you know, this can expose contradictions between their account and the evidence.

We have a duty of care towards employees to properly investigate allegations, and this includes creating an environment where people feel safe to raise concerns.

So-called ‘alternative questions’ can be effective but should be used with extreme caution. These questions link an admission with a mitigating choice. Consider the question: “Was this something you planned, or did it happen in the heat of the moment?”

Both alternatives require an admission from the individual, but the latter enables them to mitigate their admission in a more acceptable manner. This technique can be manipulative and should only be used strategically and by experienced investigators.

The veracity and reliability of evidence

Outcomes sometimes unravel because the investigator did not rigorously verify the statements made and evidence that was provided. A common example is taking the statement of a witness at face value because the investigator assumed their good faith.

This can be costly, as the case of Royal Mail v Jhuti [UKSC 2017/0207] demonstrated. The investigator accepted the manager’s concocted narrative about underperformance without questioning the employee. As a result, the investigator did not discover that the manager had engineered the performance issue in retaliation for protected disclosures. This resulted in the tribunal awarding over £2 million to the employee for unfair dismissal.

The burden of proof

We have a duty of care towards employees to properly investigate allegations, and this includes creating an environment where people feel safe to raise concerns. Where the allegations are especially serious, such as sexual assault, there can be a reluctance to intervene without solid evidence.

The burden of proof is ‘on the balance of probability’, and employers who have reasonable grounds for concern should not be afraid to take appropriate action.

Carrying out a thorough investigation not only helps justify any action, it also demonstrates a commitment to dealing with inappropriate behaviour.

If you enjoyed this, read: Jimmy Fallon: What to do with superstar employees who are toxic.

One Response

  1. This is really insightful,
    This is really insightful, Jim. Thank you!

    My current position I am not involved directly with investigations, but some of the issues mentioned at the start of the post I have seen firsthand in previous companies, and it’s disappointing.

    Thank you for sharing your knowledge.

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Jim Moore

Managing Partner

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