At the height of the sexual misconduct scandal in the international development sector earlier this year, attention focused on the board of trustees at Save the Children.
The charity was severely criticised in the media for the way in which it dealt with allegations of sexual misconduct against the charity’s former chief executive Justin Forsyth and former policy director Brendan Cox. Both left in 2015, not long after the allegations were made. In April, a statutory inquiry was opened into Save the Children by the Charity Commission, which will investigate how the complaints against senior staff were dealt with, and later that month Sir Alan Parker, the chair of Save the Children International, stepped aside over his handling of the situation.
Handling complaints against senior staff can be fraught with difficulty for charities, especially if the chief executive is involved. So how should a charity board handle a complaint against a senior member of staff?
According to Emma Burrows, partner at the legal firm Trowers & Hamlins, charities should have a reporting process in place for safeguarding breaches, as well as a grievance procedure that covers issues such as bullying and harassment. A whistleblowing procedure is also required: sexual harassment complaints might fall under this.
The most important thing, says Burrows, is to make sure staff are informed about and regularly trained in these policies, and that the charity can demonstrate they are easily accessible to staff, such as by having them on a staff intranet.
But she says that having the right policies means nothing unless you have the right culture in place, one in which people feel able to make complaints and know they will be dealt with confidentially.
"Boards need to be very happy that they are operating an environment where people feel they can make complaints," Burrows says. "You can’t really provide for that in policies and procedures – it is all about the culture of the business and how the charity needs to make sure that is a good culture."
Having the right policies in place is inevitably futile if they are not followed, says Kate Walker, personnel director of the charity Hospice in the Weald. She says charities should apply those policies "consistently at whatever level".
Walker says: "Have a solid bank of policies that deal with these issues, make sure they are communicated widely across the organisation and are implemented to the letter when there is an allegation against a member of staff."
If a complaint is received, it is important that there is a clear process in place for how the board should deal with it, particularly if it is against the chief executive. The policies should clearly state who handles complaints against senior staff members, including that the board would hear allegations against the chief executive. Some thought on who on the board would chair hearings is also required, as well as who would sit on any potential appeal.
Jenny Berry, director of leadership and governance at the charity leaders network Acevo, says that "whoever is investigating shouldn’t have been close to the incidents at all, and shouldn’t be on the staff team or on the board either".
This generally means appointing an independent investigator. Berry says the investigator should have very clear terms of reference and be allowed access to the relevant documents, people and witnesses they need. A budget should be available to ensure the investigation is completed in a timely fashion, Berry says.
Burrows says that senior HR experts or employment lawyers are best placed to handle these investigations, with an auditor the best port of call if the allegations involve financial matters.
If the allegations are very serious, the senior staff member might have to be suspended, Berry says. She adds that the charity will then need to decide who will temporarily take over from the chief executive, as well as how staff, beneficiaries, donors and the media should be made aware. Burrows warns, though, that there have to be good reasons for a suspension – either that the person could harm the investigation or pose a threat to the business, themselves or other people.
Any investigation must be objective and must be seen to be objective, Walker
says. This means both taking the original complaint seriously and making no presumption of guilt until the investigation is concluded.
Once an investigation is completed, Berry says, the investigator should be asked to make recommendations in their report. But she stresses that they should not be asked to say what sanctions should be put in place, which is "for the board to decide". Possible sanctions include changes in policy, disciplinary action, mediation and counselling, and informal action such as training. Even if no action is taken, Berry says, there must be "repair mechanisms" in place to ensure the subject of the investigation feels able to return to work.
Burrows says charities should also consider policies to set out what behaviour the organisation does find acceptable, as well as what is prohibited. She says a declaration policy would put the onus on staff to report any consensual relationships and protect the organisation from being held legally liable if a relationship comes to light. It is also "sensible to have some sort of code on how people should behave in a general sense to give people guidance", she says.
Any incident involving senior staff, particularly if it is the chief executive, will attract media attention. This means having a communications plan in place with a clear point of contact on the board, usually the chair, says Berry.
There needs to be a strong single message from the charity, with a plan to ensure that any scandal comes out as a single story, rather than having details leak out over a number of weeks or months.
But what should charities say publicly about any allegations against and investigations of senior staff? One of the accusations levelled against charities such as Oxfam and Save the Children is that they failed to properly disclose the nature of the allegations faced by staff members.
But a policy of utmost transparency can have negative consequences, says Burrows. She says that although the outcome of the investigation needs to be made known, there is a real issue about people expecting organisations to be completely transparent and admit their failings, because this could leave the charity open to legal claims. Damages for sexual harassment are unlimited, she points out, and this can lead to very high tribunal awards.