HR’s role when workplace sexual offences are a crime
There have been a number of high-profile examples of workplace sexual offences resulting in police investigations being discussed in the news recently. For example:
- In 2021 Brittany Higgins accused the government of inaction in response to a sexual assault that took place in Parliament House. Higgins complained that no action was taken and she received no support. In response, the Government argued that Higgins didn’t want police involvement.
- This week a Sydney hairdresser is facing court on multiple charges of sexual touching going back over 30 years. He was initially charged in November 2021 when two victims had come forward with complaints. 15 women have now accused the hairdresser of various sexual acts including sexual assault and sexually touching a child between 10 and 16 years.
These cases highlight the complexity for HR teams when dealing with allegations of workplace sexual offences that may be a crime and result in police investigations.
During my career as a workplace investigator, I have investigated claims of rapes, stalking, grooming, pornography offences, sexual assaults and sexual harassment. Many have been substantiated and a few have not. Crimes have been committed against the aged, the young, the vulnerable. Some have occurred with consent, some without. Some have been committed in ignorance, most not. All have been denied by the perpetrator. This blog outlines some of the key issues for HR teams when navigating the challenges of dealing with allegations of sexual offences where a crime may have been committed.
HR and investigations of a sexual offence
HR regularly investigate sexual misconduct. The same conduct, which if reported to police, could be deemed criminal. HR do this when:
- they, or the victim, fail to identify that the conduct is criminal
- the victim doesn’t wish to take police action
- the police do not have the time to investigate; or
- the case is not serious enough to warrant police action.
Sexual misconduct is not easy to investigate. When HR first receive the first complaint three key challenges exist:
- Knowing if the conduct described is a criminal offence
- Responding to the wishes of the victim; and
- Availability of supports.
Knowing whether the conduct described is a criminal offence
When staff or customers approach management about sexual misconduct they often don’t know what to call it, or how to categorise the behaviour. They just know that it makes them uncomfortable.
Common responses to being the victim to unwanted sexual conduct include:
- minimising the behaviour
- engaging in self-blame for encouraging or allowing the behaviour to happen; and/or
- dismissing the behaviour as accidental or a misunderstanding,
- reluctance to report sexual misconduct due to fear of being disbelieved, experiencing repercussions. or not wanting the offender to experience disciplinary action.
The HR (or management) staff member who receives the complaint from the victim might also experience these responses.
If both the victim and the person receiving the complaint suffer from ignorance of the law and a tendency to minimise the intent of the behaviour, they may be reluctant to involve the police. As a consequence sexual misconduct is often not reported, and when it is, the victims may lack confidence raising their concerns. It is not uncommon for victims of sexual assault to only report their own experience when they see someone more vulnerable becoming the next victim.
It is important for HR teams to always consider whether a crime may have been committed in any allegation of sexual misconduct.
Responding to the wishes of the victim
When a victim does not want to make a police report
Even when victims are able to overcome the challenges of reporting the unwanted behaviour, they may still described it as not being as serious or traumatic enough to be reported to police. Victims are often conflicted about what they want to happen after they disclose. This may be due to trauma, adopting feelings of blame or confusion about what has happened, or loyalty to the offender.
Despite popular opinion, the police will not take action to investigate a crime against the victims wishes. If the victim is not able to give consent due to age or disability the wishes of the guardian are considered instead. Even though some occupations have compulsory reporting to police, this will still not result in an investigation against a victim or guardians wishes.
The legal system is also open to a victim changing their mind at any time. It is common for victims to delay reporting, or to choose to pursue criminal action many years later. There is no connection between delayed reporting and false complaints.
When a victim does make a police report
If a victim does report the behaviour to police, then police are not obliged to disclose any information to the employer in fact, they have to keep it confidential. HR is dependent on the victim to keep them updated with the progress of a police investigation.
If HR can confirm that police are dealing with the case, then they should let the police investigate the crime. A good guide is to consider the potential damaging impact of a workplace investigation on a police investigation. If there is a risk that the workplace investigation will harm the police investigation – let the police investigate first.
HR’s role is to take care of the welfare of their employee and keep them safe at work. They may also be responsible for dealing with the accused if they are an employee. HR may need to investigate breaches of the code of conduct. This can be done before, during or after the police investigation.
Supports available to the employer and employees
Not all employers have the necessary skills or abilities to provide adequate support for victims of sexual misconduct. It can also be very difficult to provide support to an employee whilst remaining impartial to the events. If HR are trying to manage support for two employees between which allegations of a sexual offence has been made AND investigating they should stop right now.
Best-practice care for all employees involved is to provide dedicated support and welfare personnel whose job is to ensure the welfare of the employee and negotiate for the relevant supports in the workplace. These advocates or support people should not be involved in determining what happened or be required to juggle the needs of both the accused and the accuser.
Over and above the support provided in the workplace is the role performed by employment assistance programs (EAP). Refer parties to the EAP provider for formal support and counselling from qualified professionals. If your workplace doesn’t have an EAP provider, you can arrange for work to pay for psychological support via workers compensation or just from expenses. Rapid support can help prevent psychological injury and lessen the duration of injury should it occur.
Top tips for HR when someone reports a sexual offence:
If you are required to investigate sexual misconduct, remember these five things:
- Deferring a response will not make it go away.
- You have the capability to provide unforgettable support to the victims.
- ALL parties deserve to have their account heard.
- The quality of the investigation changes the lives of the people involved.
- If you can’t be impartial, find an independent workplace investigator to collect the evidence