Harassment and sexual harassment in the workplace are currently very hot topics and are increasingly being highlighted in the media both at home and abroad.
Complaints of harassment or sexual harassment in the workplace are among the most difficult situations for an employer to handle. Here we outline how employers should deal with such allegations.
Dealing with a complaint of harassment or sexual harassment
It is important that a complaint of harassment or sexual harassment is dealt with seriously and promptly. Any delay in dealing with the claim may cause disruption in the workplace and an employer may be held liable for the delay. A person raising a complaint of harassment or sexual harassment should not be subject to any adverse treatment, provided that the complaint is made in good faith. The alleged perpetrator has the right to challenge a complaint of harassment or sexual harassment.
Dignity at work policy
Employers should have a comprehensive Dignity At Work Policy in place which outlines in clear language what an employee should do if they feel they have been subject to harassment or sexual harassment. Such a policy will usually make three approaches available to an employee: informal procedure, mediation or formal procedure. Although most employers would like to see complaints resolved as informally as possible, it should be acknowledged in the policy that every employee has the right to seek to have their complaint formally investigated where this is appropriate.
Investigation of the complaint
Where the formal procedure is invoked, an investigation will usually be carried out into the alleged offence by a nominated investigator. External consultants may be contracted to undertake an investigation at the discretion of the employer where the Dignity at Work Policy provides for this. The investigation should be conducted thoroughly, objectively, with sensitivity, confidentiality and with due respect to the rights of all parties concerned. The investigation should also be governed by clear terms of reference which should be communicated to the parties in advance of the commencement of the investigation.
Outcome of investigation
Where the outcome of a thorough investigation of a complaint is that an employee has engaged in actions or conduct which constitutes harassment or sexual harassment appropriate disciplinary action should be taken, up to and including dismissal, depending on the seriousness of the violation. Where the outcome is that an employee has made a complaint which is malicious or vexatious ie, not made in good faith, then the complainant should be subject to disciplinary action, up to and including dismissal, depending on the seriousness of the complaint. The procedures outlined in the employer’s Disciplinary Policy and Procedure should be followed in the event of either of these outcomes. A disciplinary hearing should be held to establish the facts of the situation before any decision is taken to discipline an employee. Where the outcome of a thorough investigation is that an employee has not engaged in actions or conduct which constitutes harassment or sexual harassment or the investigation is inconclusive then both parties should be immediately notified that an investigation has been conducted and there are no grounds to substantiate the complaint.
The Dignity At Work Policy should also provide that the outcome of any investigation may be appealed by either party and set out how to do so.
The Irish Congress of Trade Unions has written to the Minister for Employment Affairs calling for complaints of sexual harassment in the workplace to be covered by protected disclosures legislation where a worker can disclose a relevant wrongdoing to an external prescribed body, who should in these instances be, the Health & Safety Authority or the Workplace Relations Commission.
Lesson for employers
The failure to adequately deal with complaints of harassment or sexual harassment can have a negative effect on the workplace, leading to low morale, reduced productivity and the very real threat of litigation. Having a good Dignity At Work policy in place, communicating this policy to all staff and following its procedures quickly and sensitively, will minimise the adverse effects of such allegations.