As the #MeToo campaign continues to give workers the courage to bring sexual harassment claims, employers are under more scrutiny than ever before. Charlie Thompson, Associate at Harbottle & Lewis LLP, looks at what do employers need to know.
The high-profile stories of the last 12 months have increased the public’s consciousness of sexual harassment and inappropriate behaviour in the workplace. However, many employment lawyers were already familiar with the kinds of behaviours being complained about.
Much of employment law is, in essence, about uneven power relationships – between employers and employees, and between bosses and staff – and the potential abuse of that power. The abuse of power can take many forms, and there are few forms of it that an employment lawyer will not have encountered.
In that sense, #MeToo and #TimesUp are nothing new for employment lawyers. The law remains unchanged, and the allegations are unsurprising to most experienced practitioners. The major change, however, is that more individuals who would previously have suffered in silence now have the courage to stand up for themselves, and hold their employers and their bosses to account. Consequently, employers are under more scrutiny than before.
When allegations of inappropriate behaviour are raised, employers are faced with a very difficult task. They need to balance three sets of often incompatible rights and interests – those of the complainant, the employer and the person complained about. In protecting themselves, employers are invariably at risk of, at best, leaving the complainant and the person complained about unsatisfied with how the matter is handled, and at worst, breaching their legal rights. The consequences of the latter can leave careers and lives in tatters, as well as leading to liability and reputational damage for the employer.
Employers are facing the fact that there is now rarely a quick or easy fix when allegations of harassment at work are raised. A knee-jerk reaction of exiting a complainant or the individual complained about (typically with a payoff, a reference and strict confidentiality obligations) can increase the risk, in the future, of appearing to be complicit in the alleged conduct, or participating in a cover up.
Whereas it might have been more common in the past for a complainant to take a period of leave and then depart swiftly under a settlement agreement, while the alleged perpetrator either remained in post or was allowed to move on quietly, employers no longer have the luxury of cutting corners, or having a wish-list of preferred outcomes and then considering how to get there.
It has become apparent in the last 12 months that many employers are not getting this balancing exercise right. Often they may leave complainants regretting that they attempted to resolve the matter through internal means, giving them further ammunition in a potential claim. Alternatively, , in their zeal to protect themselves and to support complainants, they fail to pay sufficient regard to the rights of the individual being complained about and so give rise to successful unfair dismissal claims.
How, therefore, should employers deal with allegations of inappropriate behaviour in the workplace?
Where allegations are raised, it will rarely be appropriate not to conduct an investigation of some kind, even when allegations are historic or raised by a former employee. A challenge for many employers is that the standard required of such an investigation can often be higher than they are typically used to.
Given how high the stakes are for all parties, the investigation will generally need to be far more sophisticated than investigating a simple conduct or performance issue. Errors made at an early stage in the investigation potentially contaminate everything that follows and raise the risk of liability.
Careful thought should be given at an early stage to scoping the terms of reference in the investigation and diligently articulating the allegations. Whilst an investigation might produce further information which means that the original allegations need to be altered, it is dangerous for an employer to allow the scope of the investigation to mutate over time. Employers can also fall easily into the trap of conflating grievance and disciplinary investigations – a distinction between these two processes should be kept in mind throughout.
Employers should also consider who is best placed to conduct the investigation. Appointing an investigating officer who has had prior dealings with either the complainant or the individual complained about will often give rise to allegations of pre-determination and bias.
It is important for the investigating officer either to have (or at least have the support of someone with) detailed working knowledge of the complex statutory and common law in this area. Where there is also the prospect of a criminal or regulatory investigation, care must be taken by the employer not to prejudice those investigations.
Many employers rush to suspending the alleged perpetrator or the complainant, relying on the presumption that suspension is a neutral act. This is not the case, and suspension can typically generate unfair momentum in an internal process against the suspended employee. Employers should carefully consider what its reasons for suspension are, and consider whether there are workable alternatives.
Typically, the purpose of an investigation is one of impartial fact-finding – it is not to prove or disprove the allegations. Employers should take care to ensure that the investigation takes an even-handed approach to obtaining evidence which exculpates the alleged perpetrator as well as evidence which incriminates them to avoid any risk of appearing biased.
Witnesses and Confidentiality
M individuals, including those who could offer corroborating evidence, may fear reprisals. This is a very difficult issue to deal with, as it will rarely be appropriate or even possible to guarantee total anonymity – the individual complained about will need to sufficiently understand the allegations against him in order to defend themselves and – especially in smaller organisations – the identities of those giving statements might be obvious anyway.
Employers must be careful not to offer more confidentiality than they are able to give, but can reassure complainants and witnesses by keeping the pool of people involved in the investigation as small as necessary, and treating information on a “need to know” basis.
In a similar vein, employers can often be complacent about understanding what elements of its investigation will be privileged and therefore not disclosable to either the complainant or the alleged perpetrator. Extreme care needs to be taken over document creation and dissemination of information to avoid inadvertently losing the protection of privilege.
A decision can only be reached after the investigation has concluded. Where the employer makes findings against the alleged perpetrator, thought needs to be given to the appropriate sanction. Employers can often jump straight to dismissal, and not, for example, consider any mitigating circumstances or alternatives to dismissal. Any decision will need to be carefully articulated, and reasons will need to be provided.
The complainant and/or the alleged perpetrator might choose leave the employer during the course of the investigation, either through resignation or an agreed exit. This can often be legally and commercially sensible. However, it will rarely mean that an employer can breathe a sigh of relief and consider the case closed – where an investigation has been started and has not been finished, there is a severe risk that the employer will be seen to have not dealt with the underlying issue or to have simply swept it under the carpet. Where an investigation has started, it will need to be concluded.
What often gets lost in the course of dealing with these matters is the profound impact it can have on both the complainant and the person being complained about. Employers need to ensure that support is offered to both parties, and that steps are taken to ensure that the employer does not, through mistakes in how it handles the complaint, make the employment relationship unsalvageable or exacerbate any damage already done to either party.