There is no legal duty on an employer to carry out an investigation into allegations of sexual harassment sensitively, but contractual procedures must be followed.
How should an employer investigate allegations of sexual harassment made against an employee by a fellow worker? In Deadman v Bristol City Council, the claimant alleged that he now suffered from depression as a result of the way in which his employer had conducted such an investigation. His claim was for damages for personal injury.
As a local authority, the employer had published a document entitled ‘Integrated Equalities Policy’. It had also adopted a written ‘Procedure for Stopping Harassment in the Workplace’.
The employer admitted that it had failed to follow its own procedure in that the panel convened to examine the complaint against the employee consisted of only two rather than three members as laid out in the procedure. The employee also complained that, having appealed against the panel’s decision that he had harassed his colleague, the appeal committee’s decision (that the panel’s decision should be overturned but that, as the original complaint remained unresolved, a fresh panel should be convened to deal with it) was conveyed to him by a letter which was merely left on his desk for him to find when he next came into work.
Although the High Court considered that, by acting in this way, the employer had broken an implied legal obligation to act sensitively, the Court of Appeal has now allowed the employer’s appeal. There is no such legal duty on an employer. The employer must comply with its own contractual procedures and, for these purposes the Procedure document (but not the Policy document) was to be treated as a contract term. Beyond that, an employer has only two legal obligations to its employee – the implied duty of mutual trust and confidence and the duty to take reasonable care to avoid causing physical or mental harm to the employee.
In this case, although there had been a breach of procedure, it was not that breach that had caused the employee’s depression and it could not reasonably have been predicted that merely informing the employee that the investigation had been re-opened would cause him psychiatric harm.
Points to note:
- It will be reassuring for employers to hear that there is no extra legal requirement on them to handle allegations of harassment in a particular way.
- However, any procedures for dealing with such allegations (which all employers should have in place) will be regarded as contractual documents and the employer will be in breach of the employment contract if those procedures are not followed.