How to handle a sexual harassment allegation

Photo by  on  Unsplash

Photo by on Unsplash

Sexual harassment in the workplace has been at the forefront of the news recently. From the reports of inappropriate unlawful conduct made about Hollywood film producer Harvey Weinstein to the serious allegations that led to defence secretary Michael Fallon’s resignation from Cabinet, it seems that no industry has been exempted from shameful revelations of sexual misconduct.

While an employee’s allegation of sexual harassment is unwelcome news for any employer, many are then left wondering how to handle such a complaint. Unfortunately, a common reaction of some employers is to deem such complaints an embarrassing inconvenience that should be swept under the carpet quickly. However, such a response is risky as it exposes the company to potential sexual harassment claims that would be expensive to defend at an employment tribunal. The best course of action is for the employer to treat all complaints of sexual harassment seriously, even those that are made informally or with a request “not do anything about it”.

Although immediate action should be taken, it is important that the employer not jump to any conclusions about the alleged perpetrator’s guilt.  A reasonable investigation into the allegation must first be carried out to establish whether there are any reasonable grounds to belief that the accused is guilty of harassment.

The investigation should involve interviews of both the employee who made the sexual harassment allegation and the alleged wrongdoer. It is also important to interview any person who either the complainant or accused has identified as a person with relevant knowledge. If other employees come forward during the investigation with similar allegations about the accused, the employer should ensure that all complaints are investigated equally and thoroughly, even if some allegations appear to be unfounded. Any evidence that may support the allegation or exonerate the accused (such as emails, documents, and photos) should be reviewed before the investigation is concluded.

While the investigation is going on, the employer should take reasonable steps to ensure that the complainant is not forced to work alongside the alleged wrongdoer.  This might mean suspending the accused (generally with pay) until the process is concluded.  The employer should also ensure that the complainant is not subjected to any threats of retribution for speaking out.

If the investigation indicates that there is credible evidence of wrongdoing, then the employer should invite the accused to a disciplinary hearing where he can be questioned further. The employee must be told of the allegations he is facing and, if dismissal may be in the cards, this must be made clear.

Once the disciplinary hearing has been held and the employer has heard what the accused has to say, a decision can be made on the sanction.  In situations involving minor misconduct, it might be sufficient to give a written warning to the wrongdoer along with refresher training on the company’s anti-harassment and bullying policy. Where the level of harassment is sufficiently serious to amount to gross misconduct, however, dismissal will be the appropriate outcome.

Given the seriousness of the allegation, it is more important than ever to maintain an adequate paper trail. The employer should make and keep full records of all information relevant to the complaint, investigation, and outcome.

By following these steps, the company will send an emphatic message to its employees that sexual harassment will not be tolerated. This should give potential harassers pause for thought which may reduce the likelihood of sexual misconduct in the future.

Leyton Legal