“He said/She said”: 8 tips for getting sexual misconduct investigations right

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Many investigations in the news recently, such as the CBI, involve sexual misconduct. Often these are cases of “he said/she said”, where it is one person’s account of an event against the other with no one else present.

So how do you make fair findings in these kinds of cases, when there are no other witnesses to corroborate either party’s version of events?

Here are 8 key considerations our Resolution team deploy to ensure a thorough sexual misconduct investigation in these circumstances:

1. Standard of proof
First of all 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 (redacted as necessary) accounts to verify the facts claimed at interview. The consistency and accuracy of what the individuals have said in the past could be examined, eg previous investigations. 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 what are the motivations for each person – 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 contradict what they say (although any assessment like this needs to be made against the backdrop that interviews can be stressful places and we need to ensure not to (mis)apply a cultural lens around how they may naturally act).

6. Documentary evidence
What does any documentary evidence tell you, in particular, contemporaneous with the alleged events – photos, emails, WhatsApp messages, social media communications, receipts, that might record how people were feeling around that time/what they did before and after.

7. Patterns of behaviour
Any proven patterns of behaviour could be relevant eg from past HR records.

8. Witness testimonies
Speak to anyone who, although they might not have witnessed the alleged act, could have evidence around a person’s behaviour before or after an alleged event took place or other relevant observations.

Where sexual harassment has taken place, imagine the difficult and often traumatic time the complainant will be going through to have not only experienced the harassment but then have come forward to raise it with their employer. Counter this against the impact a finding of sexual harassment could have on a person’s career, if the allegations are found true. These can be very difficult and emotional cases and place an even higher burden on the investigator to make reasoned findings, although we need to be careful not to require stronger evidence than would otherwise be the case, purely because the matter is serious. That could end up assisting abusive individuals and letting down complainants.  

A considered investigation, approached with impartiality, fairness and confidentiality can go a long way to establish sound evidence from which to make findings in these kind of cases.  

Learn more about Byrne Dean’s approach to investigations here.

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