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Sexual harassment and employers: striking the right balance?

06 November 2018

#MeToo and #TimesUp have only been prominent in the media for approximately a year, but employment lawyers are used to dealing with the types of behaviour that these hashtags brought into public discourse.

Despite the surge in awareness, the law has not changed. However, the increased number of individuals holding their employers to account, has seen employers under more scrutiny than ever before.

When allegations of inappropriate behaviour arise, employers have the difficult task of trying to balance their interests with those of the complainant and the accused. If the employer is too protective of their own interests, this can at best lead to the other parties feeling unsatisfied with how the complaint has been handled, and at worst, a breach of their legal rights leading to liability and reputational damage.

There is rarely a quick fix or short cut in dealing with allegations of harassment, bullying or discrimination, and cutting corners can be dangerous. A swift payoff, a reference and strict confidentiality obligations (whether it is for the complainant or the person complained about), creates the risk that in the future, the employer might be seen to have been complicit in the alleged conduct or having even participated in a cover up.

Should employers handle allegations poorly, this can provide disappointed complainants with ammunition to use against the employer in a potential claim. On the other hand, if employers become too robust in their investigations, it could give rise to claims from the accused. What has become clear over the last 12 months, is that many employers struggle to strike an even balance.

So how should employers deal with allegations of inappropriate behaviour in the workplace?

Investigation

Almost all allegations, including any historic allegations made by former employees, should be investigated in some manner. To avoid risking liability, these should be carried out thoroughly and in far greater detail than basic conduct or performance investigations.

The purpose of an investigation is to undertake fact-finding on an impartial basis. It is not an adversarial exercise with the purpose of proving or disproving the allegations.

From the outset, both the scope of the investigation and the allegations themselves must be clearly defined and adhered to. A common error is for the scope of an investigation to change over time, and for example, what started as a grievance mutates into a disciplinary investigation. Each investigation and process should be kept distinct.

Another factor to consider is the identity of the person who will be conducting the investigation. Ideally, this should be someone who has not had prior dealings with either party in order to avoid accusations of bias. Given the complexity of the law in this area, the investigating officer should have, or be aided by, someone with detailed working knowledge of the law. In conducting this internal investigation, care must be taken not to prejudice the investigations in potential criminal or regulatory cases.

Suspension

A common knee-jerk reaction by employers is to suspend the accused under the incorrect assumption that if they describe suspension as a neutral act, that makes it so. Before rushing to suspend, employers should consider whether they are entitled to suspend, on what basis they are suspending (and for how long), and whether there are any alternatives.

Witnesses and confidentiality

Complainants and witnesses can often request unqualified confidentiality as a condition of their participation. Whilst this may be appropriate, it can make it difficult for the accused to understand the allegations against him/her and to prepare a response. As such, employers should think carefully about what assurances of confidentiality they are able to give. A common pitfall is for an employer to promise more confidentiality at the outset than they are able to give if the complaint is to proceed. As a rule of thumb, confidentiality can be protected by minimising the number of people involved in the investigation.

Employers also have to be extremely careful over the documents they create and the information they share to prevent inadvertently losing privilege in those documents.

Decisions

Employers should not rush into making decisions. The alleged perpetrator should have an opportunity to respond to the allegations – where allegations are upheld, the employer should take into account any mitigating circumstances or alternatives to dismissal. Any decision should be communicated properly with a full explanation.

Settlement/exit

Sometimes settlement discussions will arise during the course of an investigation, or either the complainant or the accused resigns. If, however, an investigation has started, it should be concluded in order to avoid accusations of sweeping the issue under the carpet.

Support

Often, employers will become so focused on conducting their investigation, that they fail to consider the impact that it will often have on both parties. Employers must ensure that they offer support to both parties and that they are carrying out their investigation in such a way so as not to exacerbate the situation any further.

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