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 in 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) which came into effect in October 2024.
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, without credible and meaningful investigation training, legal may not be the best place to provide the investigator, as 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.
Intersol have delivered training and qualified a number of lawyers 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/ER are in a rush to comply with the preventative measures required by the WPA but in many cases are 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, in many cases unjustifiably so but low all the same.
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 world.
Rail services providers by requirement engage with Health and Safety investigators and whilst investigations into safety related occurrences are the focus of their roles, it is of note that a private member’s bill, the Health and Safety at Work Act 1974 (amendment) Bill, was recently tabled. If it passes, it’ll add another duty to prevent workplace harassment – especially sexual harassment – with training, risk assessments, and policies to stamp it out.
This overlaps with what employers should already be doing since October, but now, if they slip up, the Health and Safety Executive (HSE) could impose criminal penalties and unlimited fines, not just the EHRC’s 25 per cent tribunal uplift.
Investigations into sexual harassment are an entirely different type of investigation with trauma-informed and person-centred techniques at the core of the skillset 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.
Different types of investigations require different skillsets. Those skillsets can only be taught through credible and meaningful training delivered by experts. This is already accepted practice in serious incident investigations and serious and complex fraud investigations with a prerequisite being relevant 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 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.
Intersol offer training in these areas:
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
And for times when outsourcing is the correct option Intersol has a team of specialist investigators to assist.
Mick Confrey
Intersol