The #MeToo campaign has continued to highlight how endemic and pervasive sexual harassment is in the workplace. This is backed by arecent study by the Trades Union Congress which has revealed that one in eight women have experienced unwanted sexual touching or attempts to kiss them at work, and 28% have received comments of a sexual nature about their body or clothes.

Sexual harassment can be described as any conduct of a sexual nature which makes one or more individuals in your team feel uncomfortable. If your organisation has to deal with an allegation of sexual harassment, handling the matter with extreme care and sensitivity will be critical, not only to ensure the matter is fairly but robustly investigated, protecting those involved and your organisation, but also to send a clear signal that such behaviour will not be tolerated.

There will be much to consider during this time. Emotions will be heightened from both the complainant and the respondent, and potentially the surrounding workforce. Additional pressure will be on the shoulders of those managing the case to ensure that the complaint is dealt with appropriately and swiftly and that any action subsequently taken addresses the matter fairly and effectively for all concerned.  

As an employer, you must ensure that you have a clear and robust policy in place for when a sexual harassment claim is made, setting out what constitutes sexual harassment, what steps an employee can take to raise a complaint and the procedure that will be followed once a complaint is made. Employees are often reluctant to complain of such events in the workplace for fear that their complaint will not be dealt with effectively;they may be embarrassed, worried they won’t be believed, concerned about office gossip and backlash, and/or fearful that their disclosure will negatively impact their career. It is therefore critical that employees who raise issues are believed, that their concerns are taken seriously and dealt with in a sensitive and confidential manner.

Equally important is that Employers should not let their own views influence how they respond to an allegation. Never diminish the seriousness or impact an incident may have, brush matters under the carpet or dismiss any allegations raised. Behaviour that you may not find offensive, may be incredibly offensive and unwanted for others. It is also worth remembering that harassment does not need to be ongoing behaviour, it can be a single incident! Equally, it can be direct and blatant or subtle and insidious.

One of the key issues to be resolved in such situations is whether the respondent should be suspended from work pending the investigation outcome. This is a complex matter and one which has made the news recently with the conservative party not suspending an MP accused of rape and sexual assault, pending a criminal investigation.

The decision to suspend should be ‘reasonable’ and based on a number of factors such as the seriousness of the allegations, ensuring the integrity of the investigation and whether there are any alternatives to suspension, such as temporarily moving the respondent to another department. You should also ensure that your disciplinary policy and / or contract of employment allow you to take such action. Suspension should be on full pay, remain in force for the shortest period possible, be kept under review and confirmed in writing.

If the issue raised cannot be resolved in an informal manner, a formal grievance procedure should be followed.  As part of the procedure for dealing with any complaint of harassment, the employer should ask the complainant what action they would like to see taken to resolve the situation.

The next step is to conduct a thorough investigation into the matters raised. It is imperative that you ask someone independent, ideally who is skilled and experienced in conducting investigations, to manage the process. If you don’t have someone sufficiently skilled internally then find an external investigator. It is also important that the person has the seniority and confidence to really explore the issues raised, to ask difficult questions and ultimately not be afraid of making difficult decisions in relation to the case.

The investigation must be handled confidentially with the complainant kept updated with the progress of the case. Follow up on all aspects of the case, including witnesses referred to by both the complainant and respondent, and keep detailed minutes of all discussions. Witnesses must also be advised to keep the investigation and identities of those involved confidential.

The outcome of the investigation will naturally depend on the facts of each individual case: the case may be dismissed or wellfounded. If it is found that there is a ‘case to answer’ the investigator may recommend anything ranging from an informal discussion with the respondent, training, counselling, mediation, through to the instigation of a formal disciplinary procedure. If disciplinary action is recommended, this should be managed in accordance with your Company policy with the hearing chaired by someone independent, who has not been involved with the case so far. The outcome of any disciplinary action will again depend on the facts of the case, but serious cases of sexual harassment may result in dismissal for gross misconduct.

Sexual harassment cases can be high profile and a poorly handled investigation can result in Tribunal claims and potential significant reputational impact for the organisation. It is also worth adding that under the Equality Act 2010, employers can be held to account for acts of harassment carried out by employees during the course of their employment, except if they can prove that they made reasonable efforts and steps to prevent such behaviour. Reasonable efforts would include, but are certainly not limited to, having robust policies on harassment (and the wider area of equal opportunities and diversity) and regular training of team members to ensure they understand what behaviours may constitute harassment and the potential repercussions for behaviours that overstep the mark.  

Handling complaints of sexual harassment can be highly complex and stressful for all concerned. We recommend taking advice to help you navigate your way through, to protect the employees involved and also your organisation.

If you require additional support and guidance to either manage a sexual harassment allegation, or with how to mitigate the risk of cases arising through putting in place robust policies and training on diversity, equal opportunities and harassment in the workplace, please do not hesitate to contact us on 01625 428926 or enquiries@sitrusconsulting.com