Facing a sexual misconduct allegation at work: the importance of your first account
Salmond’s lament of an unfair process is also something we see more and more as employment proceedings struggle to adapt to the #MeToo era. Allegations are usually presented with little detail at short notice, with the accused feeling compelled to provide an initial “internal” account to counterbalance the accuser’s narrative. Increasingly, these internal accounts do not stay that way. A referral to the police may be made by the complainant or, as reportedly in this case, by the employer. Once the matter is in police hands they will inevitably seek the work documentation of an internal investigation since, in matters of sexual misconduct, first accounts are key.
The distinguishing feature in Salmond’s case is the availability of judicial review to challenge the internal investigation because his employer is a public body open to challenge about the way in which it makes decisions. This is not a process open to most. The former Scottish first minister has been applauded by some for his use of a judicial review as a forthright assault on the allegations against him. However, such an aggressive approach comes with great risk.
While the judicial review may resolve in Salmond’s favour, it is unlikely to affect any criminal investigation, which would run concurrently and independently.
On the back of the judicial review, Salmond has made a considered attempt to get ahead of the story. This is understandable. Silence is uncomfortable and investigations can take a considerable time. Even if an allegation is ultimately found to be baseless, the harm caused by negative headlines and a significant period under suspicion and out of work can cause irreparable damage.
However, information is oxygen to an investigation and Salmond’s judicial review is likely to lead to the production of a further volume of material that may be accessible by the police.
Any material produced by the judicial review would then sit alongside the material generated by the initial investigation. This would form the basis of the police investigation. If Salmond has given an account to the internal investigation, it will be probed and any inconsistencies will be scrutinised. This may not cause Salmond any difficulties, but if the reporting is correct, the alleged acts took place — while in drink — more than four years ago. Given that length of time, many would struggle to remember what took place on any given day with any precision.
Salmond is in an invidious position, if there is criticism to be made of the internal investigation, it is his right to make that challenge. However, this may also increase his risk in a criminal investigation. When faced with a #MeToo allegation, a siloed approach rarely, if ever, works.
This blog was first published in The Times, September 2018.
If you have any questions about the issues raised in this blog, please contact a member of our team.
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