The recent criminal trial and 10+ year sentencing of Russell Brand at Southwark Crown Court highlighted a systematic failure that extends far beyond a single high profile figure. Time and again, the court heard how inappropriate behaviour was known, discussed, or treated as an “open secret”, within production environments, yet normal HR complaints were rarely lodged at the time.
This brings reactive workplace policy frameworks into focus. Most of which rely on an individual filing a formal, written grievance before HR initiates an investigation. When behaviour is an “open secret”, relying on formal complaints creates a toxic culture within the organisation, making it vulnerable to legal issues and reputational damage.
Taking All Reasonable Steps
Employers have a duty of care and, under the new worker protection act, are obliged to take all reasonable steps to prevent sexual harassment. This duty applies if the organisation legally holds knowledge, so waiting for a victim to file a formal report isn’t a valid defence. For example, managers, line supervisors or team members being aware of persistent misconduct through rumours, warnings between staff, jokes or informal complaints.
This is important because victims and witnesses may stay silent due to fears of retaliation or being ignored based on individuals being high-profile or having a high degree of control. It also prevents institutional apathy caused by a normalisation of the individual’s behaviour being “just how they are”.
Why internal teams cannot effectively investigate “open secrets”
When conducting an internal investigation there are some key steps to ensure it is carried out thoroughly, fairly and transparently, and that it complies with both statutory obligations set out in the Duty of Candour and professional standards. But for an “open secret” to exist, it is likey a result of internal mechanisms failing, which presents several challenges for internal teams attempting to investigate internally, including:
- Employees fear that disclosures will leak back to managers and damage their career progression, or be minimised to protect the business.
- An investigation would examine why managers failed to act on warnings or informal complaints, making it impossible for internal HR teams, who report into the senior managers whose oversight is under scrutiny, to investigate objectively.
- A lack of authority or power imbalances may cause internal investigators to be restricted from having full access to records, or make them unable to challenge senior stakeholders.
- If the case reaches an employment tribunal, the employer needs to demonstrate that the investigation was impartial, otherwise subsequent disciplinary action risks being ruled as procedurally unfair.
Attempting to carry out an internal investigation into misconduct which has operated as an “open secret” often exposes the organisation to greater legal, operational and reputational risk. An independent investigation is beneficial in a number of ways:
- Helps to rebuild a positive culture
- Guarantees witness trust
- Protects procedural fairness
- Evaluates the organisational structures that enabled the behaviour
- Delivers findings that withstand legal and regulatory scrutiny
When internal processes protect senior figures
At Verita, we have direct experience of the importance of bringing in independent investigators who are immune to an individual’s reputation and focused solely on the facts. In our thematic review into institutional abuse, we examined how prominent individuals, including disgraced surgeons Ian Paterson and Myles Bradbury, exploited what we termed “superhero status” to mask persistent misconduct.
Our findings revealed a consistent pattern, that when an individual is viewed as indispensable, charismatic, or exceptionally talented, colleagues and managers routinely excuse boundary-crossing behaviour as harmless eccentricity. Whistleblowers stay silent because they assume the organisation will always side with its “superhero”. Breaking that cycle requires stepping outside internal hierarchies altogether.
Similarly, our report on the NHS investigations into Jimmy Savile, highlighted that few of Savile’s victims felt they could or should tell anyone. Most of those who did say something found that they were not believed or were ignored.
“Given recent cases of abuse in the health and care sector, football and other sports, and cadet forces, there are tangible lessons to be learnt to protect children and other vulnerable people from abusers in positions of power. What most concerns me is that in the majority of cases, senior management had early knowledge of concerns about individuals but failed to follow these concerns up.”
– Ed Marsden, Verita’s managing director
How an independent investigator handles “open secret” inquiries
When inappropriate behaviour has existed as an “open secret”, there may be a large quantity of witnesses, informal accounts spanning years, yet no single individual willing or able to act as the primary accuser. As was strikingly present in the NHS trust reports on Savile, there were almost no formal complaints ever logged despite widespread knowledge existing for decades.
To conduct a fair, robust and legally sound inquiry under these conditions, independent investigators need to adapt their approach:
- Re-frame the mandate: Without a formal grievance the employer itself must commission the investigation as the initiating body, grounded in its statutory duty of care and proactive harassment prevention obligations. Instead of a standard disciplinary investigation, the mandate is reframed as a thematic or environmental workplace. The Terms of Reference are drafted to examine workplace culture, reporting mechanisms, and specific patterns of behaviour over a defined period within a team, department or location. This encourages witnesses to speak as individuals who fear being named as the primary accuser are more likely to participate in a broader review of workplace culture.
- Evidence gathering without a Complainant: In an open-secret inquiry, investigators need to build a cumulative picture using overlapping streams of information, including exit interview notes and electronic communications (eg. email or Slack threads) which might contain warning signals about the behaviour, such as jokes being made. But where there are no paper trails or HR grievance logs, investigators need to reconstruct the unrecorded history by looking at informal warnings, management acceptance and cultural acceptance over long timelines. Interviews start in an open-ended manner across former and current employees and carried out confidentially and with safety in mind. As themes emerge, interviews can become more focused based on recurring names, dates or specific incidents mentioned by multiple sources.
- Balancing anonymity with legal requirements: When subjected to allegations, an individual has a right to know the substance of the case against them so they can respond fully. In an open-secret investigation, this can make protecting victims and witnesses challenging. Independent investigators handle this by protecting individual identities during the initial evidence-gathering stage where recurring behaviours and specific details are identified. If the thematic review indicates serious professional misconduct, the investigator prepares precise, factual allegations which could include a date range, location, and details of the behaviour, without exposing vulnerable witnesses to direct retaliation.
- Delivering Actionable Findings: The investigator’s report should provide distinct deliverables which the commissioning board or executive team can action. This includes clear findings of whether the behaviours occurred on the balance of probabilities which enables the organisation to initiate formal disciplinary proceedings. But, as well as this, independent investigators should provide an objective assessment of how the behaviour was allowed to persist is provided, evaluating failures in management, reporting systems and culture.
Practical Steps for HR and Executive Boards
To ensure your workplace avoids organisational failure and fosters a positive culture, here are some practical steps your organisation can take:
- Audit informal channels such as a review of exit interviews, glassdoor feedback, informal management check-ins, and reviewing historic HR notes for patterns.
- Review and enhance independent reporting channels.
- Ensure volunteers are vetted effectively.
- Commission an early-stage independent review to help to prevent catastrophic institutional failure later.
- Ensure staff with less training or junior staff are adequately trained, supervised and supported so they are able to deal with complaints effectively.
- Encourage staff to report any matters which indicate a risk of harm to others, even if what they pass on appears to amount only to suspicion or gossip.
Allowing inappropriate behaviour to persist by simply waiting for a traumatised or intimidated employee to lodge a formal complaint is clearly a poor strategy. Being proactive is critical, and there are two important avenues to consider:
- Whistleblower Protection: As we explore in our guide on effective whistleblowing policies and procedures, a policy is only as good as the trust it commands. Employees will not speak up if their disclosures route directly back through the senior managers whose behaviour is being implicated. Modern organisations must ensure reporting mechanisms offer safe, independent pathways that guarantee confidentiality, protect whistleblowers from retaliation and ensure that concerns about “untouchable” figures are taken seriously.
- Positive workplace culture: Concepts like a Just Culture, which focus on systemic learning rather than simply apportioning blame, were pioneered in high risk sectors like healthcare, but their core philosophy applies everywhere. Organisations must create an environment which fosters accountability and psychological safety, where speaking up is seen as a professional duty rather than a risk to career development.
Conclusion
The lesson of high profile cases like Russell Brand’s is that an organisation’s greatest vulnerability is the gap between what people know and what the system sees.
When an “open secret” finally becomes known to the public, the question facing organisations isn’t about whether they had a policy in place, it is “Why didn’t anyone feel safe enough to tell us?”. Embracing proactive environmental reviews recognising the dangers of the “superhero” trap, and enhancing independent reporting lines allows employers to uncover the truth before an external investigator, or court of law, has to do it for them.
If you would like to learn more about our independent investigation services and how to investigate an “open-secret” in the workplace, please book a free consultation, or if you prefer, use our contact form, or contact us on 020 7494 5670 or via email at [email protected].
