How Should an Employer Address Allegations of Sexual Harassment in the Workplace?

A number of recent high profile cases of sexual harassment allegations have brought sexual harassment in the workplace into the spotlight. From Hollywood to Westminster, no workplace is exempt from the possibility of such allegations being made, nor is any workplace exempt from conduct which could amount to sexual harassment, whether inside or outside working hours. So how does an employer address allegations of sexual harassment?

Jill Gracey explains the legal definition of sexual harassment, outlining recognised forms and behaviour that can amount to sexual harassment, for example, jokes or comments of a sexual nature, lewd photographs or drawings, or sending e-mails or uploading social media posts with material of a sexual nature. Jill emphasises the importance of having adequate policies in place, the onus on the employer to conduct a thorough investigation into any allegations and the need to deal with these sensitively and in a confidential manner. 

Transcript 

What is sexual harassment?

The legal definition describes sexual harassment as unwanted conduct of a sexual nature, which has the purpose or effect of violating a person's dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person. What is important about this definition, is that it is conduct which has the purpose or effect of creating such an environment. Therefore, a tribunal will focus on the complainant's perception and subjective viewpoint rather that the perpetrator's intention.

However the reasonableness of the complainant's perception will of course be relevant. It's a well-established principle, that one single incident could be enough to constitute harassment. While unwelcome sexual advances or touching are perhaps the most recognized forms of sexual harassment, sexual harassment can also include jokes or comments of a sexual nature, displaying pornographic photographs or drawings, or sending e-mails with material of a sexual nature.

How should an employer handle allegations of sexual harassment?

As most of you will already know, terming unwanted conduct as banter is not a defence to allegations of sexual harassment or indeed any harassment. If allegations of sexual harassment are raised within your workplace, your first port of call should be to look into your anti-bullying and harassment policy or your dignity at work policy. A thorough investigation into the allegations should be conducted as soon as possible. And how to conduct that investigation will very much depend on firstly, the policy and what it says, and secondly the particular circumstances of the allegations.

What should a harassment policy include?

Your policy should be very clear when setting out the process to be followed, and who will have responsibility for each of the stages. In extreme cases, you may wish to consider whether any temporary measures should be put in place during the investigation. For example, would it be appropriate to move an employee to a different area within the office, or into a different room on a temporary basis while the investigation is carried out? Or in extreme cases, is it necessary to suspend the alleged harasser pending an investigation?

What is the general process when handling allegations of sexual harassment?

The complainant should raise their complaint in writing in the first instance. However a meeting should also take place with the complainant where possible, to gather further information and to clarify the allegations that they have made. It would also be usual practice to meet with the alleged harasser to outline the complaint and to provide them with an opportunity to respond to the allegations. It is crucial for an employer to address any allegations of sexual harassment sensitively and in a confidential manner, and both the complainant and the alleged harasser should be assured of this throughout any investigation. Further investigative steps maybe prudent to help establish the facts. For example, reviewing CCTV footage or reviewing e-mails or other exchanges between the relevant parties.

Should an employee be disciplined for sexual harassment?

The investigation should give you sufficient information to determine whether the complainant's case can be supported and whether disciplinary action is warranted or not. Whatever the decision of the investigation, this should be communicated to both the complainant and separately to the alleged harasser. If the allegations are upheld, appropriate follow-up action should be taken. For example, taking disciplinary action against the alleged harasser where merited.

Can an employee appeal against a decision? 

Policy should also be clear on an employee's right to appeal any decision reached, whether that be a decision reached under your bullying and harassment policy, or your dignity at work policy, or whether a separate decision has been taken under your disciplinary procedure against the alleged harasser. It is prudent to place your policies and procedures under regular review, to ensure that their contents are clear and concise, and that practically the process works for your particular organisation, and that they reflect the good practice guidance.

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Note: Legal-Island is running a Contracts for the Modern Employment Relationship conference on 17th May 2018 at the Merchant Hotel

After this conference, you will be able to:

• Stress test your current template so you can identify which clauses in your template contract of employment need to be updated
• Use ‘best in class’ clauses which you can incorporate into your template contract
• Identify where standard clauses, including restrictive covenants, need to be brought up to date with the digital world
• Understand how to build flexibility into your contracts to enable the organisation to adapt and react to a fast-changing global economy

Learn more:
https://www.legal-island.com/event/employment-contract-terms-for-new-employment-relationships/