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Worldwide the #MeToo movement continues to grow and shift. In the past 12 months alone, we have seen a marked rise in the number of reports being investigated by schools and tertiary education providers about allegations of sexual offences, harassment and abuse. It seems that these reports will only continue to grow as children and young adults become more equipped and confident to make reports of such conduct, with more platforms such as Everyone’s Invited (which reached its two-year anniversary this month) accessible for their voices to be heard.
It is integral that, when investigating a report of a sexual offence, harassment or abuse, the investigator takes a series of steps to protect both the complainant and the respondent and the integrity of the investigation being undertaken.
As we know too often, and has recently been reported in The Times, the outcomes of such investigations (including exclusion from schools) can have very serious consequences for both a complainant’s and a respondent’s personal and future professional life. For that reason, it is crucial that any investigation taken is unbiased and clearly documented, with both the complainant and the respondent being offered support throughout the process.
We have put together our top tips for schools and institutions conducting these sensitive investigations:
When a complaint is received, ensure that as much information as possible is obtained relating to the complaint. The investigator needs to take steps to inform themselves about what the complaint is and which procedures will apply to their investigation.
The investigator should plan how they will conduct the investigation, including (1) who they will interview and ask for written statements, (2) when they will have conducted interviews by and (3) when a written report of their findings is due to be completed. They should also ensure that all sensitive data is securely held.
Any interim measures must be necessary and proportionate during the investigation to safeguard the parties or to enable a full investigation to be carried out. There should be no ‘blanket’ application of such measures; it will need to be assessed on a case-by-case basis. Any precautionary measure deployed should be for a specified period of time and should be regularly reviewed, particularly as the investigation develops or if there is a material change in the facts or evidence in the case. The right to seek a review of the decision to implement these measures should be available to the complainant and respondent if new information becomes available.
Ensure the process is fair to all parties and that all parties are treated fairly and equally. Achieving fairness in the resolution of complaints starts with a comprehensive, well-structured, procedure.
There should be a clear process in place for accurately recording and documenting actions and decisions made by the school/institution at each stage of the investigation. A log should be kept of contact with all parties, evidence obtained and decisions made. This should be from the moment a complaint is reported until the investigation has concluded. Not only does clear and accurate recording make successful challenges to the process less likely, it also enables the investigator to provide information to other agencies if required.
Ensure clear and transparent communication with both the complainant and the respondent, so that both are clear on the process, timescales and their obligations in the process. Regular updates are crucial.
Evidence should be gathered promptly. Investigators must consider at the very outset of the investigation what steps need to be taken to preserve evidence in hand. Relevant documentation may include emails, photographs, and CCTV. Interviews should be conducted in a timely manner and written statements obtained from individuals involved in the matter as swiftly as possible. It is important to keep clear and accurate records of each interview conducted, also allowing an opportunity for the witness/respondent to review the record of their interview and clarify any comments made therein.
Your records of each document obtained (and by whom) should allow the school/institution to evaluate which documents are disclosable to the respondent. Failing to disclose a document which might assist the respondent or undermine the complaint is likely to hinder the fairness and integrity of the process.
At the outset of the investigation, the investigator should identify the allegations and inform the respondent as soon as practicable in writing what these are and any evidence held in support. Once the investigation is complete, the investigator should review the allegations and ensure it is consistent with the evidence obtained.
If the investigator determines that there is a case to answer, consider whether proceeding to a hearing is the only appropriate resolution and in the interests of the complainant. Any such decision should be supported by adequate reasons; one of the fundamental principles of natural justice. A decision that lacks proper reasoning could in itself be a ground for appeal.
Investigations of this nature can be complicated and confusing for complainants and respondents who do not understand the process or their rights. Please reach out to a member of our team if you have any questions.
Alfie is an associate in the firm’s Regulatory team. He specialises in advising regulated professionals who are subject to investigations and disciplinary proceedings in the legal, finance and healthcare sectors. He has a particular interest and expertise in advising students who face behavioural, sexual or academic misconduct allegations brought by their education providers.
Sophie is a Senior Associate, Australian Qualified, in Kingsley Napley’s Regulatory department. She specialises in advising regulated professionals and bodies on compliance, in investigations and in respect of disciplinary proceedings and enforcement action. She also advises regulators on policy, governance, prosecutions and litigation.
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