With sexual harassment in the news – from #MeToo to the Presidents Club – what do employers need to know about handling complaints? Elizabeth Stevens, a professional support lawyer at Birketts LLP, outlines the appropriate steps to take in response to a complaint about sexual harassment in the workplace.
If you have received a formal complaint from an employee, this should be promptly and thoroughly investigated in accordance with your grievance procedure (or, ideally, a harassment complaints procedure).
Appoint an independent and suitably experienced manager to investigate the complaint. The investigator should meet with the complainant in order to fully understand the allegations and then confirm the remit of the investigation in writing to both the complainant and the alleged perpetrator, together with an estimated timescale for the investigation to be concluded.
Ensure the investigation is carried out in a timely fashion, with interviews of all witnesses properly documented. Keep the complainant updated with progress in the investigation. If there is found to be any substance to the allegations, disciplinary action should follow. Dismissal is often (but not necessarily) the appropriate sanction.
Should the alleged harasser be suspended?
In some cases, suspension will be an appropriate measure to take but it will depend on the nature of the allegations and whether those involved work in close proximity. Suspension should never be a ‘knee-jerk’ reaction but should only result from careful consideration of the circumstances, including the seriousness of the allegations and whether the alleged harasser’s presence at work could inhibit a fair and proper investigation. Temporary reallocation of duties or the alteration of working hours might in some circumstances be a more appropriate and proportionate response.
What if the complainant does not want to pursue a formal complaint?
This is often the most difficult scenario to deal with in practice. Even if the complainant is unwilling to make a formal complaint and refuses to cooperate with the process, it might still be advisable for the employer to pursue an investigation. This is particularly the case if the allegations are very serious or there is any suggestion that such behaviour is endemic. An employer has a duty towards all its employees to provide a safe and suitable working environment; a failure to investigate suspected incidents of harassment could breach the implied term of trust and confidence.
It might be necessary to broaden out the investigation to establish whether anyone else has observed or been the victim of inappropriate behaviour and whether the problem is more prevalent rather than a one-off incident. Having the right person conducting the investigation and providing reassurances that a complaint will be taken seriously is often sufficient to encourage individuals to cooperate with a formal process.
How can we ensure confidentiality?
All those involved in the process should be reminded of the need to keep the nature and the details of the complaint confidential and informed that a failure to do so might result in disciplinary action being taken. Only those directly involved in the complaint and the investigation should be told about it. Care should be taken that all communications and documents compiled during the investigation are kept properly secure.
It is important to remember that it is not just the act of harassment that gives rise to potential liability on the part of the employer. Employees who are subjected to any detriment (disadvantage) following, and resulting from, their involvement in a complaint of harassment may choose to pursue a victimisation claim.
An act of victimisation, which arises from an employee carrying out a ‘protected act’ (in simple terms complaining about, taking action or giving evidence in respect of harassment), does not need to be consciously motivated. There can be other reasons for the employee’s treatment in addition to the protected act, making a victimisation claim potentially difficult to defend.
There is a statutory defence available to employers provided they can demonstrate that they have taken ‘all reasonable steps’ to prevent harassment from occurring, meaning they are not liable for an individual employee’s unlawful acts.
To assist in establishing this defence, employers should ensure that they have robust policies in place, supported by managers and followed consistently in practice. A comprehensive bullying and harassment policy should remind employees of the conduct expected of them, both in the workplace and at any functions/events held outside the workplace that will be deemed an extension of the workplace. It should also explain the process for making complaints.
Regular training of all employees, to reinforce the policy and make it clear that certain behaviours will not be tolerated, is also advisable. New employees may join from organisations with a very different workplace culture, at which high risk behaviours are condoned. Training in what is regarded as unacceptable will reduce the incidents of harassment and also assist in establishing the ‘all reasonable steps’ defence.
A zero-tolerance approach to ‘banter’ within the workplace will go a long way to preventing complaints of sexual harassment arising. Contrary to popular belief, defending a claim on the basis that the comments were ‘only banter’, or that the victim was a willing participant in the banter, will rarely succeed in front of an employment judge.
- Birketts is running a series of Early Bird seminars on the topic of sexual harassment at various locations throughout February.