Recent revelations in the media of inappropriate behaviour by a number of high profile figures has led to a heightened awareness of sexual harassment and, therefore, an inevitable spike in the number of employees coming forward with complaints.
What amounts to sexual harassment?
Behaviour which is of a sexual nature and has the purpose or effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. Therefore, such behaviour can include:
- a comment of a sexual nature which a person perceives as offensive, regardless of whether this was the intention of the person who made it;
- unwanted physical contact, for example, a hug or a hand being placed on somebody’s knee;
- creating an atmosphere which could be considered as demeaning, for example, sexist jokes being made or an individual being whistled at.
If an employer does not manage a complaint of sexual harassment appropriately, it could put itself at risk of successful claims being issued against it and the potential financial awards are uncapped.
So, as an employer, how should you handle complaints of sexual harassment in the workplace?
Here are our key tips to dealing with such issues:
- Always treat complaints seriously and do not delay in dealing with them. Managers should be made aware of the steps they will need to take if such a complaint is raised with them. In addition, managers and all other staff should receive training so they can identify the type of conduct that amounts to sexual harassment. Ultimately, if an employer cannot evidence that it took steps to try to prevent any such behaviour taking place, it will be held liable for the inappropriate actions of its employees.
- Have a written policy, which sets out who employees should approach if they want to make a complaint, as well as the process that will be followed when such complaints are made. You should have standards of behaviour in place, which make clear that sexual harassment will not be tolerated and any findings of such behaviour will result in disciplinary action being taken. In order for the policy to be of real benefit to the organisation, it is important that you make employees aware of its existence.
- Once a complaint has been raised, you should consider whether an informal discussion will be sufficient to resolve matters or whether a formal investigation needs to be carried out. If appropriate, this can be discussed with the complainant.
- You should ensure that the member of staff who is going to investigate the complaint is experienced in doing so and has had sufficient training. They should deal with the matter sensitively and should be careful not to fall into the trap of agreeing to keep the complaint confidential, as in reality it may be difficult to do so.
- The person investigating should begin by listening to the complainants account and establishing the detail. For example, the dates, times, details of the incident(s) and any witnesses. Discussions with the complainant should be well documented so that the notes can be used as a source of reference.
- Consideration should be given as to whether you need to take any immediate action in respect of the alleged harasser. For example, it might be appropriate to suspend them on full pay whilst an investigation is being carried out, particularly if their presence at work might hinder the fact find. Alternatively, it might be necessary to put some measures in place while the investigation is being carried out, for example, altering seating arrangements, changing reporting lines or requiring that another employee is copied in on any emails between the complainant and the alleged harasser.
- The complainant should be kept informed in respect of the timescale for completing the investigation, as well as what is being done to deal with their complaint. Nevertheless, you will need to balance this with your obligation of employee confidentiality. If any disciplinary action ends up being taken against the alleged harasser, the detail and reasons for this should remain confidential between you and the individual concerned.
- The investigation is likely to involve one person’s word against another’s. However, if different accounts are obtained, this could be due to the different perceptions of the individuals, rather than because one party is being dishonest. The investigator might be able to find related evidence that will assist them in making their decision, but ultimately they may need to make a judgment based on what they reasonably believe to be true.
If you would like any further information or advice about any of the issues explored in this article then please contact our Employment Team on 01384 414 410, alternatively please email Employment Solicitor, Michelle Wooding at email@example.com