The evidence given recently at the Women and Equalities Select Committee has emphasised the fact that there is a right way and a wrong way to deal with allegations of sexual harassment. Whilst there are different ways of handling complaints, seeking to cover up the events complained of without getting to the bottom of the facts is never the answer. This article outlines the key considerations for HR at the outset of an investigation into sexual harassment allegations against an employee.
Scope of the investigation
Sexual misconduct in the workplace will not often be as extreme as the allegations made against Harvey Weinstein. Sexual harassment may be defined as any conduct of a sexual nature which makes one or more members of staff feel uncomfortable which may, for example, derive from inappropriate comments or a workplace dress code. An employee complaint may relate to a one-off incident or form part of a wider culture of sexual harassment: if an employer suspects the latter, it is important to ensure the scope of the resulting investigation is sufficiently wide to catch all negative behaviours, as the employer is under a general duty of care to provide a safe place of work for its employees. This duty will not be performed if an employer only investigates a single incident which is merely the ‘tip of the iceberg’ of sexual misconduct in the working environment.
Risks to employers
In addition to their general duty of care, employers will be liable for acts of sexual harassment committed by members of staff unless they can show that they took ‘all reasonable steps’ to prevent the staff member from carrying out the acts complained of. It is therefore important that lessons are learned following an investigation which can inform how a business takes preventative measures in the future.
Whilst it might be tempting for an employer simply to consider disciplinary action against the individual perpetrator as its entire response to the matters investigated, questions should be asked about how the workplace culture might be improved, for example by awareness training or by introducing a values code to the workplace that is strongly supported by the leadership team.
Privilege
One of the key risks involved in investigating allegations of sexual harassment is the potential reputational damage from an inadequate investigation or response. An employee who makes allegations against other members of staff might seek to bring proceedings against his or her employer. Workplace documents relevant to the investigation or the allegations made will have to be disclosed to the court or tribunal unless they benefit from legal privilege.
A document (such as meeting notes) will be privileged if it is produced for the primary purpose of giving legal advice or in contemplation of legal proceedings. At the early stages of an investigation, a recording or transcript of an interview with a witness or the alleged wrongdoer may not be privileged. Where sensitive matters may be imparted at the interviews, ensuring that notes are taken only by lawyers for the purpose of advising on the employer’s liability will help maintain privilege.
Key points for HR
- HR should be careful to identify allegations which might constitute sexual harassment, as the conduct complained of might not be obviously sexual in nature, and it should be noted that many acts other than unwanted touching will be sexual harassment. Making this evaluation in good time is important as a grievance involving sexual misconduct would normally be involved on a more formal basis than other grievances.
- The scope of the investigation must be determined early and must be justifiable: employers must be wary of potential accusations of wilful blindness if the scope of the investigation is too narrow. Justifications for the key decisions as to scope should be documented, as should any decision to suspend an employee pending the outcome of the investigation.
- Who will investigate the allegations? It should be someone suitably experienced and with sufficient gravitas to effectively interview the accused and the accuser – possibly an independent non-executive director, or senior manager from a different part of the business. Consider whether it is appropriate to bring in an external investigator (possibly a lawyer in order to benefit from privilege), and the role HR should play. Should HR lead the investigation, or instead focus on managing and administering the process?
- Where some allegations are made anonymously, it is important to consider how much weight they should be afforded compared to those made without anonymity. It should be stressed to all those involved in the investigation that the allegations and identity of those involved should be kept confidential in order to protect the accused and the accuser.
- The allegations must be put to the alleged wrongdoer in sufficient detail, and in such a way as to afford him or her a genuine opportunity to respond to the allegations.
- Though it may be appropriate to suspend an employee who is under investigation, this decision should not be taken lightly and must be balanced against the employee’s interests. Suspension is not a neutral action and potentially can have detrimental effects on a person’s reputation both inside and outside of the workplace. A ‘knee jerk’ decision to suspend an employee may sufficiently damage his or her reputation to warrant a breach of contract claim, for which the compensation would be unlimited by any cap on compensation (unlike an ordinary unfair dismissal claim).
- Whilst any legal settlement should ensure that the parties are required to maintain confidentiality and not disparage the other, it is important that the circumstances do not suggest a ‘hush up’, which was characteristic of the Weinstein allegations.
- If the investigation reveals allegations to be true, disciplinary action against the individual wrongdoer will always be necessary response but may not be sufficient: HR should always consider further preventative measures and particular lessons to be learned from the investigation.
In conclusion
HR plays a critical role in spotting allegations of harassment and making sure they are properly investigated. Whilst it is not always appropriate for HR to conduct the investigation, it must determine the scope of the investigation, provide guidance throughout and oversee a prompt and thorough investigation. Without advice from experienced HR professionals and/or employment lawyers, employers run a much greater risk of high profile complaints from harassed staff.
