Independent investigators for bullying and harassment complaints.
Impartial external fact finding into bullying, harassment and sexual harassment allegations, with a written report the organisation can rely on at hearing, at appeal and at tribunal.
Bullying and harassment complaints are the hardest workplace investigations to get right. The evidence is usually contested, much of it is oral, the parties still have to work in the same organisation afterwards, and the complainant is often frightened of what happens once the complaint is made. An internal investigator who knows both people is rarely able to reach a conclusion that either side will accept.
An external investigator changes that. The investigator has no history with either party, no reporting line into the department, and no stake in the outcome. The findings are made on the evidence, against written terms of reference, and set out in a report with reasons. That is what allows an employer to act on the outcome with confidence, and it is what a tribunal expects to see when an organisation says it took the complaint seriously.
Clerk&Counsel places independent investigators with employers across England and Wales. Investigations are placed with practitioners experienced in weighing contested oral evidence and in being questioned on their reasoning, including barristers and experienced non-barrister investigators. We can also place an independent chair for the hearing and employment counsel to advise the decision maker separately, so that the fact finder and the decision maker are never the same person.
Complaints we are instructed to investigate.
- Bullying, intimidation and abusive management style complaints.
- Sexual harassment, including historic allegations and multiple complainants against one individual.
- Racial harassment and race discrimination complaints.
- Disability related harassment and failure to make reasonable adjustments.
- Harassment related to age, religion or belief, sexual orientation and gender reassignment.
- Complaints against directors, partners, trustees, clinicians, headteachers and chief executives.
- Third party harassment by clients, contractors or service users.
- Cultural reviews where a pattern of complaints has emerged in one team.
Equality Act 2010 and the preventative duty.
Section 26 of the Equality Act 2010 defines harassment as unwanted conduct related to a protected characteristic which has the purpose or effect of violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. The test takes account of the complainant's perception, the other circumstances, and whether it is reasonable for the conduct to have that effect, which is why a report needs to record context carefully rather than simply recording whether words were said.
Section 109 makes an employer liable for acts done by employees in the course of employment unless the employer took all reasonable steps to prevent them. The employer's investigation, its policies and its training are the evidence on that defence, and the preventative duty in relation to sexual harassment has raised what tribunals expect an employer to be able to show.
Where the conduct is serious and repeated it may also engage the Protection from Harassment Act 1997, which carries a longer limitation period and no need for a protected characteristic. Awards for injury to feelings follow the Vento bands, and there is no statutory cap on discrimination compensation, so an investigation that fails to deal properly with a serious complaint is an expensive mistake.
Handling sensitive evidence properly.
The investigator agrees written terms of reference before starting, then interviews the complainant first so the allegations are properly particularised. Vague allegations are the main reason investigations fail, so time spent identifying specific incidents, dates and witnesses at the outset saves weeks later.
Every allegation is put to the person complained about in a form they can answer, with enough detail to give a fair opportunity to respond. Witnesses are interviewed on what they saw and heard rather than on what they conclude. Documents, rotas, messages and attendance records are checked against the accounts given, because contemporaneous material usually decides the disputed points.
Support for participants is arranged around the process rather than by the investigator, and the report records the findings on each allegation with reasons on the balance of probabilities. Where a complaint is not upheld the report says so and explains why, which is as important to the person complained about as an upheld finding is to the complainant.
Support beyond the investigation.
The investigator does not chair the hearing or impose a sanction. Where further support is needed we can place:
- Independent chairs for grievance, disciplinary and appeal hearings.
- Workplace mediators where the working relationship can be repaired.
- Employment counsel to advise on merits, draft the response and conduct the tribunal hearing.
- Policy, training and culture reviews following a systemic finding.
Specialist areas within this practice.
- Independent workplace investigations
The national investigation service, terms of reference and fees.
- Grievance investigation services
External investigators for formal grievances.
- Workplace mediation
Repairing working relationships without a formal process.
- Employment and discrimination barristers
Discrimination claims for claimants and respondents.
- Employment barristers
Tribunal advocacy, advice and appeals.
Need an independent investigator?
Send the allegations in outline, the policy that applies and the timescale you are working to. A clerk will come back with investigator options and a written fixed fee.
Common questions.
What is the difference between bullying and harassment?
Harassment has a legal definition under section 26 of the Equality Act 2010 and requires unwanted conduct related to a protected characteristic. Bullying has no statutory definition and is dealt with under the employer's own policy, though sustained bullying can found a constructive dismissal claim and, where it relates to a protected characteristic, a harassment claim as well.
Can an investigation be kept confidential?
The process is confidential in the sense that it is not shared beyond those who need to know, but a witness account may need to be put to the person complained about so they have a fair opportunity to answer it. Promising absolute anonymity at the outset is the most common cause of an investigation collapsing later.
What if the complaint is about a senior leader?
That is one of the clearest cases for an external investigator. No internal manager can realistically investigate someone above them in the structure and be seen as impartial, and a report by an independent investigator protects both the complainant and the organisation.
How long does it take?
A focused complaint with three or four witnesses usually completes within two to four weeks. Multi-complainant or historic matters take longer, and a timetable is agreed in the terms of reference.
What does it cost?
A written fixed fee based on the number of allegations, witnesses and documents, or an agreed day rate for larger investigations. The fee is quoted before instruction.
Are you a barristers' chambers?
No. Clerk&Counsel is a clerking agency and a trading style of Found First Digital Ltd. We place independent barristers regulated by the Bar Standards Board and non-barrister investigators and mediators, and the instruction runs directly between you and the practitioner.