Daniel Zona and Tania Goodman explain the steps businesses should take to ensure they adhere to both employment and criminal law

Sexual violence can take many forms and extend beyond rape and physical assault. Employers should, therefore, maintain a broad definition that includes unwanted touching or contact; the use or threat of force; forcing a victim to perform sexual acts; using sex as a tool for harassment, intimidation and coercion; predatory behaviour; spreading sexual rumours; using sexualised language or creating a hostile environment; and using sex as a condition for advancement or continued employment.

What should an employer do if an allegation is made?

Where an employee reports any form of sexual violence, or an employer suspects or becomes aware of it, the employer should handle the matter fairly and sensitively in accordance with any applicable procedure. It is advisable for businesses to take specialist legal advice in these situations, particularly given the interaction between civil and criminal law, and avoid taking any steps that might prejudice the integrity of a possible police investigation.

Some employees may ask for their complaints to be dealt with informally. Their wishes should be respected where possible, but if the nature of the complaint is sufficiently serious employers must consider taking a more formal approach to protect the individual and wider workforce. Employers should discuss this with the victim and seek their consent to agree on a ‘best way forward’.

Businesses should conduct a fair and thorough investigation as quickly as reasonably practicable and consider what steps are necessary to safeguard the victim. This could include anonymising their identity during the investigation, which would require those involved to maintain strict confidentiality and to ensure the victim and alleged perpetrator are separated.

Employers should also remember the duties owed to the alleged perpetrator by considering all the evidence and not acting rashly by jumping to conclusions before or during the investigation.

The effect of sexual violence can be debilitating for many victims and their mental health and wellbeing could suffer, including developing conditions or impairments that attract protection under equality legislation. It is prudent for employers to consider any reasonable adjustments that may be appropriate in the circumstances.

Criminal law

Acts of sexual violence can amount to a criminal offence and victims can report these incidents to the police. If they have not done so then employers should consider whether they have a duty to report it, especially if there is a risk that could impact on the safety of the victim or others.

Police investigations or criminal proceedings will not necessarily prohibit employers from carrying out an investigation, but they should first ask the police whether they can continue with their procedure or suspend it until further notice. Subject to this, they can initiate a disciplinary procedure against the alleged perpetrator resulting in a disciplinary sanction including dismissal if appropriate.

Prevention

Businesses should seek to protect staff and mitigate the risk of such behaviours by taking preventative measures to safeguard everyone. These include training, implementing appropriate policies and publishing a zero-tolerance approach towards unacceptable predatory, intimidating or sexual behaviour of any kind in the workplace.

 

This article was first published by People Management in September 2022 here.