Should you use an external team when investigating sexual harassment?

Authors: Aaron Goonrey and Emma Lutwyche (Lander & Rogers)

This article was originally published in Lexology.

The recent Barnaby Joyce allegations show that sometimes an internal investigation into workplace sexual harassment is not the best idea.

When sexual harassment or misconduct allegations are made against someone in your organisation, your reflex may be to deal with complaints in-house (especially if the person is senior or high profile). However, the benefits of engaging an independent investigator can outweigh the seeming advantage of being able to more fully control the matter internally. This is perhaps especially true now that #metoo has shone a harsh light on many organisations lack of due diligence in dealing with workplace sexual harassment.

When internal investigations go wrong

As the National Party recently discovered, using internal processes to examine internal issues can give the impression of bias and unfairness. With regards to the case of Barnaby Joyce’s alleged sexual harassment of Catherine Marriott, the finding of “unable to make a determination” due to insufficient evidence cast a shadow over the investigation’s credibility.

Worse still, such a finding means that none of the parties can move on. The alleged victim cannot get closure and her reputation may be compromised by the uncertainty surrounding the nature of her allegations. The alleged perpetrator, while not found guilty, is also not cleared of the allegations.

Mistrust and suspicion about his conduct, and the suitability of his continued service, will therefore remain. The National Party itself may also suffer reputational damage, as its lack of findings highlight an inability to manage serious issues and may suggest a culture that unfairly favours its more powerful members.

Benefits of an external investigator

To avoid doubt and misgivings about an investigation, organisations should consider engaging external assistance, depending on the nature of the allegations and those involved. Engaging an external investigator is advantageous to an organisation in:

1. maintaining its integrity and reliability, particularly when outcomes are unforeseen; and

2. obtaining an outside perspective, experience and impartiality, particularly if those responsible for investigating the matter(s) are close to those involved.

Professional, experienced, independent and impartial; an external investigator is often best placed to conduct an investigation that reaches conclusive findings (based on the balance of probabilities) and instils participants (and observers) with trust in the process undertaken by the organisation.

Those involved in an investigation conducted by an external investigator are more likely to feel heard and supported. Organisations can confidently proceed to resolution and redress, if relevant. Perpetrators who are found responsible are, at the very least, able to apologise for their conduct and make amends, with a view to repairing their reputations without the uncertainty of allegations hanging over their heads.
“Those involved in an investigation conducted by an external investigator are more likely to feel heard and supported.”

Case studies

In another high-profile case, NBC News Management conducted an internal investigation into allegations of sexual misconduct by its TV personality Matt Lauer. However, while the internal investigators found Mr Lauer guilty, they exonerated all other network leaders regarding their alleged knowledge about his conduct.

After the investigation, NBC received a continual influx of complaints and accusations that it had not investigated itself thoroughly, because the initial investigation was managed internally. Ultimately, a further investigation was required by the NBC’s legal advisors, before the findings (and recommendations) were seen as credible.

In contrast, after allegations of sexual assault were made against comedian Chris Hardwick, by a former partner, his employer AMC engaged an external lawyer to conduct an investigation. The investigation was swift and conclusive, allowing AMC to return him to work and assure the public that it had done everything in its power to ensure the correct outcome.