30 January 2020|
Sexual Misconduct / Harassment
How should employers deal with allegations of sexual harassment at work?
The Equality and Human Rights Commission issued technical guidance earlier this month which, amongst other things, assists employers by outlining best practices in responding to allegations of sexual harassment in the workplace. This guidance provides the basis for the following overview of this aspect of the guidance; the relevant sections of it are paraphrased below.
The need for effective anti-harassment policies
Employers should have in place an effective anti-harassment policy that details (and is not limited to) the following:
how to make a complaint of sexual harassment;
multiple reporting channels available for reporting sexual harassment to ensure that a worker is not required to report an incident to the alleged perpetrator;
the range of consequences and sanctions available if harassment or victimisation occurs; and
information about internal and external support and advice services available.
Employers should also ensure that their staff are sufficiently trained to deal with a complaint of sexual harassment in line with their anti-harassment policies/procedures.
Availability of informal resolution
The anti-harassment policy should state how a complainant can raise a matter informally and without placing the onus on the complainant to personally resolve the issue. This includes encouraging the complainant to address the matter directly with the alleged perpetrator (if they feel comfortable doing so) and noting appropriate third party individuals available to help them resolve the matter should they be needed. Such individuals could include a member of HR, a trade union representative, or a manager.
The third party should work with the complainant to determine how best to help them resolve the issue informally, in a way with which they are most comfortable. This could include advising the complainant on how to approach the issue directly with the alleged perpetrator; raising the matter informally with the alleged perpetrator on the complainant’s behalf; arranging mediation between the complainant and alleged perpetrator; and/or helping the complainant obtain counselling or other means of support.
Availability of formal resolution
The anti-harassment policy should also recognise that an informal solution may not be appropriate. It should therefore set out formal reporting channels involving individuals other than the alleged perpetrator, and with individuals more senior than the alleged perpetrator if possible. It should also make clear that the complainant can make the matter formal at any stage.
Reasonable timescales for each stage of the process should be set and communicated to the complainant. This will help minimise the risk of the complainant feeling as if their complaint is not being taken seriously during periods of silence (which could induce or aggravate stress and anxiety). The employer should provide the complainant with regular updates and provide clear explanation for any delay.
Right to be accompanied
Employers must inform the complainant (and the alleged perpetrator) of their right to be accompanied to formal grievance hearings by a trade union representative or colleague, and should consider extending this right to other meetings (e.g. investigation meetings) where reasonable. Employers should also consider permitting individuals other than trade union representatives or colleagues to accompany the complainant where appropriate or legally required, bearing in mind confidentiality.
Example 1: An employer must allow a disabled complainant to be accompanied by another person in order to comply with its duty to make reasonable adjustments.
Example 2: A complainant is not in a trade union, and it would be unreasonable to expect them to recount explicit details of the harassment in front of a colleague. They find it very difficult to talk about the matter and requires emotional support. It would therefore be reasonable to allow them to be accompanied by a close friend.
Independence and objectivity
Employers should also ensure independence and objectivity at each stage of the process. Employers should also consider appointing an external investigator to ensure objectivity if appropriate. For instance, the EHRC guidance recommends that different individuals at escalating levels of seniority who are not already involved in the matter should conduct the investigation, formal hearing and appeal hearing phases when possible.
Deadlines for making an allegation to the employer
At the time of writing, the deadline for submitting a claim to the Employment Tribunal is generally 3 months from the date of the last relevant event. (It may be prudent to remind callers that this time limit does not apply to criminal proceedings.)
However, an employer is not a Tribunal, and the EHRC guidance states that employers should not set a time limit within which complaints of sexual harassment must be made. The guidance notes that complaints of historical matters should be investigated in line with the standard harassment policy, and that employers should not assume that they will be unable to find evidence about an alleged event simply because it took place a long time ago.
EHRC guidance points out that illness or fear of victimisation are two reasons why a complainant may not report an incident immediately.
Maintain confidentiality at all material times
An employer should ensure that a complaint, whether travelling through an informal or formal channel, is kept confidential (subject to any legal or regulatory obligations). As this means that workers cannot speak to other witnesses, employers must ensure that they follow up with all witnesses suggested by the complainant (and the alleged perpetrator) and actively seek evidence on behalf of both sides to ensure that nothing is missed. An employer should also ensure that witnesses are aware of the confidentiality of the matter, and that breach of confidentiality will be a disciplinary offence.
What if the complainant asks for no further action to be taken?
In the event that a person raises a complaint with their employer but asks that no further action be taken, the employer should still take steps to ensure that the matter is resolved. This could include:
keeping a record of the complaint and the request to keep the matter confidential;
encouraging informal resolution and providing the complainant with any necessary support and guidance on how to do so;
keeping the situation under review by checking in periodically with the complainant to see if the situation has improved; and
if the situation does not improve, explaining to the complainant that it is necessary to address the issue for their own wellbeing and that of their colleagues.
The employer should respect the wishes of the complainant where possible. However, there may be circumstances in which the employer should take action where the risk of not taking action outweighs the risk arising from overriding the complainant’s wishes.
In assessing this risk, the employer should ask the following:
Have they considered and exhausted all other possible options?
What will the impact be of overriding the complainant’s wishes?
What are the potential risks to the complainant, the complainant’s colleagues and to other third parties if the employer does not take further action?
Have other complaints been made against the same person?
What is the likelihood of the matter being resolved by the complainant without intervention by the employer?
If the employer decides to take formal action, it should explain its decision to the complainant and ensure that it has established appropriate safeguards to prevent further harassment or victimisation of the complainant, as well as support and counselling for the complainant to deal with any impact that the decision may have.
Outcomes and recommended employer action
To be effective in encouraging people to come forward, the outcome to a formal complaint of harassment should be as transparent as possible.
|If appropriate, the complainant should be told what action has been taken to address the issue, including any action addressing their specific complaint and any measures taken to prevent a similar event happening again in future. Failure to do so may cause the complainant to feel as if the complaint was not taken seriously.
|Complaint not upheld; or
Complaint upheld but the alleged perpetrator is not dismissed
|The employer should carefully consider the continuing relationship between the complainant and the alleged perpetrator, and nominate an individual to manage the reintegration of all those affected by the allegation and investigation. (This includes arranging appropriate support and counselling for the parties; mediation; and/or an offer of redeployment if any relationship breakdown cannot be resolved through other means.)
If the complaint is upheld and the alleged perpetrator is not dismissed, the employer may need to consider, as part of any disciplinary process, issues such as: further training for the alleged perpetrator; permanent redeployment of the alleged perpetrator to another role (or redeployment of the complainant if that is their preference); or other measures needed to keep the two parties separate. The employer may also consider asking a perpetrator to apologise to the complainant.
|Complaint upheld and the alleged perpetrator is dismissed
|The employer should assess whether any post-employment issues might arise and ensure that it has appropriate processes in place to deal with them (e.g. how to address references on behalf of the alleged perpetrator).
Source: Equality and Human Rights Commission: Sexual harassment and harassment at work: technical guidance