Sexual harassment is headline news following allegations made against a number of high profile individuals. The #metoo hashtag has encouraged thousands of (mainly) women to share their own experiences and these have revealed depressing accounts of sexual harassment within the workplace.
How should you deal with allegations made by one employee against another? What happens if these relate to incidents that happened years ago? Do you still have to investigate? Partner, Melanie Stancliffe provides some helpful guidance.
Workers are protected against conduct of a sexual nature (such as inappropriate physical contact, sexually suggestive remarks and sexually indecent acts) if this is unwanted, violates their dignity or creates an intimidating or degrading environment for the victim. Unlike other forms of harassment, the conduct does not have to relate to a protected characteristic.
As an employer, you will be liable for any harassment committed by a member of staff if this took place in the course of that person's employment, which can include attendance at workplace parties or other social events linked to work.
Victims can (and often do) bring discrimination claims against their employers rather than the person who has harassed them. An employer can only avoid liability if it can prove it took all reasonable steps to prevent harassment. To establish this, it must have an equal opportunities/diversity policy that explains how employees should treat one another and how to complain. All members of staff must understand the policy (by receiving training) and the employer must take steps to deal with any allegations promptly and take appropriate steps against the perpetrators.
The investigation should be an objective fact-finding exercise – rather than seeking to protect your reputation or to shore up an allegation that others might, already be treating, as a fact.
This is easier said than done. But when the outcome of such allegations can be as serious as someone taking their own life, as was the case with Carl Sargeant MP in November last year, it is imperative that the accused gets a fair and objective investigation prior to making any determinations of guilt.
Every employer should have a policy which sets out how you will investigate complaints and you will be expected to follow this. It is also a good idea to explain to the victim what steps you will take to investigate their complaints and roughly how long this will take and to offer support throughout the process. Many employers will also ask them what outcome they would like to achieve in an ideal world as they may simply be looking for an apology and an assurance that they won’t be harassed again.
The alleged perpetrator should be informed, in writing, of the allegations against them and that an investigation will be carried out. The investigator should collect all relevant evidence available from witnesses, emails and social media etc and should look for evidence that both supports and contradicts the allegations. The investigator must decide if each allegation is more likely to have occurred than not (on a balance of probabilities) and their report needs to be able to explain why they prefer one version of the matter over another.
The role of the investigator is to consider the allegations against the employee and to determine whether, on the evidence, they are likely to be proven or not. If they are, the matter should be referred to someone else within the organisation to hold a disciplinary hearing and decide on the most appropriate sanction.
Do you need to suspend the alleged perpetrator?
The alleged perpetrator should only be suspended if it is necessary to do so. This will usually only arise where serious misconduct has been alleged (such as and you believe that the employee may tamper with evidence, put pressure on witnesses or continue to harass the victim). Even in these circumstances, it may be possible to ask the employee to undertake reduced or alternative duties (or move them temporarily) rather than completely suspend them from work.
If the allegations relate to incidents that took place some time ago, it will rarely be appropriate to suspend the perpetrator unless you have reasonable grounds to believe that he/she poses a risk to other members of staff.
Suspending someone is a serious step and you must have a good legal reason for taking it. It should not be an automatic “knee jerk” reaction to allegations of misconduct. You must be particularly careful before suspending senior employees without good evidence because the repercussions of them being excluded from the workplace can be serious. It is common for suspended employees to feel belittled and demoralised and it can be difficult for them to regain their authority when they return to work or avoid a slur on their reputation even where they are subsequently cleared of the charges.
If you suspend someone without a good legal reason, it is likely to damage the relationship of trust and confidence and may entitle to the employee to resign and claim constructive unfair dismissal (provided they have at least two years’ continuous service).
What do you do if the perpetrator has already left the business?
An employer should still investigate the complaint even if the alleged perpetrator has left the business. The alleged perpetrator can be asked to co-operate, but cannot be compelled to do so. If they have agreed to cooperate with investigations in a Settlement Agreement, the employer might have greater leverage. As the person is no longer an employee, you cannot impose a sanction against them.
When considering the degree of investigation necessary, an employer should consider when the incident/s were alleged to have taken place. Was it a long time ago? Was the alleged perpetrator in a position of power? Are you confident that the culture of your workplace has changed? The alleged victim will only be able to bring a claim if they take steps to start a claim within 3 months of the harassment (or the last incident where there is more than one) so, in many cases, the litigation risk is low.
But that does not mean you can ignore allegations. If you don’t investigate and the victim is still employed by you they may feel that you don’t believe them or don’t care what has happened to them and could resign on the basis that their trust and confidence in you has disappeared. Plus, without an investigation, how can you be confident that inappropriate behaviour and attitudes are not still part of your organisation and may expose you to future claims?
What is the appropriate penalty?
Disciplinary action could involve issuing a warning or dismissing the perpetrator. Deciding on an appropriate sanction will include consideration of the training the employee had received, their relationship with the victim (is there a power imbalance?), whether any other proven allegations had been made against the perpetrator and whether they accept that their remarks/behaviour did cause offence. An employee expressing genuine remorse and a willingness to change will go a long way to persuading an employer to issue a final written warning in circumstances where they might otherwise dismiss.