Investigating claims of sexual harassment can be particularly complex and sensitive, so appointing a skilled and experienced investigator in these cases can make a huge difference.

Often the evidence is hard to find; it’s usually wrapped up in a one-to-one situation where only two people know what happened. This kind of ‘one word against another’ scenario can be really tricky.

Sexual harassment investigations often involve nuances of language that can be critical when weighing up the evidence; what things mean, how they are interpreted and whether that was objectively reasonable in the circumstances are all key considerations. It comes down to the skill of the investigator in breaking down these challenges to extract the finer details from the evidence and make legally sound findings that the employer can rely on.

And finally, if that wasn’t enough to deal with, add a dollop of emotion on top. Being on the receiving end of allegations of sexual harassment can be as harrowing as being a victim; they cut to the heart of someone’s character. From an evidential point of view, getting solid evidence is challenging where emotions run high, so your investigator needs to be able to strip out the emotion to get to the hard evidence.

How do you deal with one person’s word v another?

So how can you confidently get to a place where your evidence points in one direction?

Probing questions!

From a legal perspective it is about being able to draw inferences from the material you have, and this may not always directly point to harassment, so your questioning skills, confidence in handling witnesses and your analytical skills need to ramp up a notch.

(Our tips on questioning techniques are here if you need them.)

In our experience of supporting clients with investigating claims of sexual harassment, the temptation is often for the investigator to take the path of least resistance.

For example, ‘the evidence is evenly balanced therefore there is no case to answer’.

This is often unsophisticated and is found to be so if tested in the tribunal. So, beware of the ‘easy’ path and get probing.

What about body language and behaviour based sexual harassment claims?

When there are no words involved and we’re just looking at behaviours, there are plenty more challenges to add to the mix. One persons take on a ‘look’ or a ‘lean’ or anything of that nature is not the same as another. So it’s time to bring your probing questions once again.

We find using questions such as “how come you saw it that way?” (because there is almost certainly going to be a denial) to understand how someone is describing what they see, are essential.

Take extra care to examine other witnesses as well

Even if you have a sense of the accused person’s natural demeanor, if the accused is saying something different and you have even a nugget of evidence to suggest that there is a differential in the way that they are coming over, then you have got to push the point. Be polite and don’t be overbearing, but don’t leave it before satisfying yourself that you have done as much as you can with it.

Be confident in that ‘awkward note taking silence’ during an interview

Take the time to write down what that person has portrayed to you. This can feel really uncomfortable when you are trying to build a rapport with someone, but notes are crucial.

We use an active writing phase in an interview, we write down the way we have interpreted what we have just been shown, and we ask if they are comfortable with that and whether it has been captured accurately.

Remember when we were talking about all your investigation skills going ‘up a notch’ – this one has to as well; because it’s really hard to get body language and behaviour across in words. Communication is central to the output of the investigation.

What if the police are involved?

Always a possibility when investigating claims of sexual harassment, and one of our most frequently asked questions at Vista HQ, so let’s look at it practically.

We often find that the first instinct if the police are involved, is “oh well, we can’t do anything”. It’s almost inevitable that a police investigation will take longer than an internal investigation, so there’s an inbuilt delay from the get-go if you wait.

In short, you don’t have to wait for the police. In many years of doing this we can’t remember a single instance where the police have said not to do an internal investigation. We are working with different burdens of proof; one doesn’t compromise the other. So even if you continue your internal investigation and make a finding, the police aren’t hamstrung by that.

The only potential barrier is that there may be additional reluctance for  the parties to engage with the internal investigation. This can be because they don’t want to compromise the position in the criminal proceedings, but quite frankly, that is not an excuse for not participating in a workplace investigation. It’s about making findings with you or without you. Employers need to make their internal decisions; criminal law is law in itself that will take care of itself.

Workplace investigations can be involved, emotional and complex situations. In cases that fit this description, outsourcing an investigation can provide a lot of benefits; independence, valuable expertise, forensic examination, a trained ability to marshal the evidence and the reassurance that the process will withstand scrutiny by tribunals and courts, although let’s hope we don’t get that far. If you would like more information regarding Vista’s investigations service, you can find it here.

Or, if you are looking to upskill your team to investigate complex claims of sexual harassment, we are running a Mock Investigation event in Manchester this summer, keep in touch on our website for the launch! Our learning team also provide market leading training on managing investigations. You can learn more here, or join us at a Webinar to ‘see us in action’.