Why opening past legal investigations must be handled with care

London Fire Brigade hit the headlines in recent times when a retrospective investigation found it to be ‘institutionally misogynist and racist’. Many people have applauded the LFB for investigating past claims of toxic behaviour, but experts are warning other businesses and organisations of some potential pitfalls of similar decisions.

Organisations should be aware of the potential legal risks of opening past legal investigations, together with the issues caused by memories fading over time.

Warnings to businesses

Experts in employment law and HR urge a cautious approach to reopening these investigations and especially when inappropriate behaviour has previously been dealt with. This prevents the need to deal with the challenges of investigating historic allegations, which reflects the fact that the evidence quality drops due to issues such as fading memories, record destruction and relocating personnel.

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Antonio Fletcher, head of employment at Whitehead Monckton, said that employers should make sure that investigations are only reopened when there are clear reasons to do so. This could be new evidence being uncovered, for example, that could have a serious impact on the outcomes.

Clear reasoning, he said, would help to ensure that individuals do not end up feeling unfairly treated or targeted and minimises the potential of a constructive dismissal claim, for example. More information on constructive dismissal can be found on the Citizens Advice website.

Karen Baxter, investigations and regulatory group head at law firm Lewis Silkin, said that it was very hard to take fresh action over old disciplinary issues and suggested that, instead, employers may focus on the reason that inadequate action was taken at the time, looking at whether people in senior roles are responsible for not dealing with wrongdoing effectively.

Looking at organisational culture

The experts suggest that employers should look at wider cultural issues in the business or organisation if there are individual bullying or harassment claims, whether or not they lead to a constructive dismissal claim or no legal action.

Fletcher said that even if formal complaints are not raised, it is important to keep track of comments and behaviours which could indicate problems within the organisational culture. Even ‘jovial’ comments that come to the attention of HR may be an indicator of deeper issues.

Angela O’Connor, The HR Lounge CEO, said that continually seeking feedback from workers and encouraging open discussions about acceptable behaviour standards and data scrutiny was key to minimising the potential for toxic behaviour that can occur anywhere.

She emphasised that it is important for employers to be specific about what behaviours are unacceptable, as general descriptions will often fail. For example, the term ‘banter’ can feel very different to different parties involved in communication.

It is also important that HR departments and employers are clear that unacceptable behaviours will not be ignored and will be taken seriously, regardless as to the seniority of the people involved.

Lead by example

O’Connor emphasised that dealing with toxic behaviour is a task for the entire organisation, including the leadership team, and not just for HR departments.

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Baxter, meanwhile, said that workers who report harassment or bullying should be told where the information they provide will go and be reassured that their allegations will be taken seriously and unwarranted repercussions will not follow.

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