We continue to see a trend for organisations to view allegations of sexual harassment or discrimination as issues requiring immediate and serious consideration and to carry out formal investigations when allegations are made. In regulated sectors, regulators are increasingly investigating allegations of sexual harassment or related misconduct.
Since the #MeToo movement began, there has been a cultural shift in the way in which organisations have dealt with allegations of sexual harassment. Organisations are responding to allegations in a more proactive and robust manner. This has led to a significant increase in formal investigations being carried out, often with external investigators.
Whilst many investigations are carried out on a privileged basis, we have also seen an increase in open investigations, with organisations often being concerned to ensure that they are seen to be dealing with allegations openly and transparently.
We have seen regulators take a more proactive approach to allegations of sexual harassment or related misconduct and an increased focus by regulators on the way in which allegations are dealt with by organisations, as well as the underlying complaints.
We have also seen an increase in the number of allegations being reported to the police and the need to manage internal investigations in parallel with potential criminal investigations.
More broadly, whistleblowing has continued to receive significant attention. The EU Whistleblowing Directive was passed at the end of 2019, although member states have until December 2021 to implement it. Although the directive would be unlikely to have a significant impact in the UK from a technical perspective, given our existing protections for whistleblowers, it will ensure there is increased focus on the way in which whistleblowers and their complaints are managed.
What are the trends in regulatory investigations/focus points for regulators which businesses should look out for in the employment context? How have these been affected by the COVID-19 pandemic?
We anticipate that the trends we have seen over the last couple of years are likely to continue. Businesses should be prepared for employees to call out harassment or other inappropriate behaviour and be prepared to deal with complaints in an appropriate manner, taking into account the broader cultural and regulatory developments of the last few years.
Businesses should expect regulators to take allegations of misconduct seriously and also draw lessons from a number of high profile investigations and disciplinary proceedings taken by regulators in response to such complaints. We are also seeing a change in attitude in those who are the subject of, or witnesses in, investigations as they realise the potential consequences if complaints are found to be substantiated. This can lead to an increase in formality in the way in which investigations are managed, with individuals increasingly taking independent legal advice at an early stage.
The COVID-19 pandemic has seen many employees working from home rather than in the office, which has reduced the scope for personal interactions leading to complaints. However, the pandemic has raised the risk of online harassment, with less scrutiny on online interactions and a blurring of lines between home and the workplace. Some employees are working under increased pressure due to the pandemic which has certainly contributed to the number of complaints being made. It has also been necessary to carry out investigations remotely and this has led to a need to adapt to new ways of working.
What were the recent legislative / regulatory changes and what can we expect going forward?
One area that has seen significant regulatory change, as well as political and media interest, is the use of non-disclosure agreements (NDAs) in settlement agreements when complaints of sexual harassment or discrimination are settled.
The Solicitors Regulation Authority has issued an updated warning notice to solicitors in relation to NDAs, with the key points being that NDAs should not prevent individuals from raising complaints to regulators or prosecuting authorities or from participating in criminal investigations. In addition, the Equality and Human Rights Commission has issued guidance on the use of confidentiality agreements in discrimination cases.
This is an area in which the UK government is likely to legislate in due course.
What can we learn from international developments in employment investigations which may have an impact in the UK?
The developments we have seen in the UK largely reflect similar developments in the US. High profile cases and the litigation environment in the US have perhaps been even more significant than in the UK. The environment in the US also informs the approach of global businesses seeking to implement a common approach in the jurisdictions in which they operate.