Dealing with complaints of sexual harassment — A five step approach

Research suggests that the problem of sexual harassment is prevalent in our workplaces as well as in public life. Dealing with allegations of sexual harassment, for example complaints of unwanted behaviour at work such as groping, sexual advances or inappropriate jokes, can be extremely challenging for HR practitioners. Emotions may run high and accounts of what has taken place may vary widely, making it difficult to establish the facts.

Every complaint is different, and it’s important to approach each case with sensitivity and an open mind.

1. Investigate thoroughly — whoever is involved.

Practical suggestion:

As ever, it is the role of HR to thoroughly and impartially investigate any complaint. It will usually be appropriate to follow your organisation’s grievance procedure, or separate procedure on bullying and harassment if you have one. Once an allegation has been raised, it is incumbent on HR to investigate, even if the complainant is initially reluctant. Don’t be tempted to ‘sweep issues under the carpet’ or resolve them hurriedly, because the alleged perpetrator is a senior role-holder. Sexual harassment can be exceptionally upsetting for recipients where there is an imbalance in power, and it is the role of HR to examine the facts, however operationally difficult this might be.

2. Remember the risk of victimisation

Practical suggestion:

Many employers are tripped up not by how they initially action a complaint, but by what happens next. It is unlawful to subject an individual to a detriment because they have done a ‘protected act’ such as complaining of harassment. Remind the parties of their obligations to act civilly and professionally while the complaint is investigated. Ask the complainant to let you know immediately of any perceived retaliation. You may feel it is not appropriate for the parties to continue working together in the interim, but be careful about how you achieve this. Suspending or moving the complainant could, in itself, be unlawful victimisation.

3. Remember your duty of care to the ‘accused’.

Practical suggestion:

Your first instinct may be to support the complainant, and of course it is essential to do so. However don’t forget that, if the alleged perpetrator also is a member of your staff, you have a duty of care to support them too. To be accused of sexual harassment can be very upsetting and, in the worst case, career ending. It is important that the ‘accused’ is made aware at an early stage of the allegations against them and is kept up to date with the progress of your investigation. Make sure the alleged perpetrator as well as the complaint is reminded of the availability of employee support and assistance. Think carefully before you suspend an alleged perpetrator, as the taking this draconian step when there is little evidence of misconduct could undermine trust and confidence. Are there alternative steps you could take until the position is clearer?. If you are unsure, take legal advice.

4. Go back to the legal definition.

Practical suggestion:

Your investigation may show that some inappropriate conduct has occurred. But is it serious enough to constitute harassment? Often, the perpetrator will insist that they did not intend to cause offence and it can be difficult for HR to stake its colours to the mast and uphold a complaint, especially where the perpetrator holds a senior role in the organisation. If you are wavering, it is helpful to go back to the legal definition. The Equality Act 2010 defines sexual harassment as “unwanted conduct of a sexual nature which has the purpose or effect of violating someone’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them”. Even if it was not the perpetrator’s ‘purpose’ to cause distress, harassment may have occurred if the behaviour had this ‘effect’ on the recipient. Remember that sexual harassment can occur without any physical contact taking place and, when examining words used by an alleged perpetrator, an employment tribunal will have little sympathy for arguments that remarks were “just banter”.

5. Learn lessons and carry them forward.

Practical suggestion:

Of course, HR’s obligations don’t end when the investigation does. It might be appropriate to catch up with the complainant further down the line to check on their wellbeing. Perhaps remind employees of the law and their obligations with equality and diversity training. You might want to issue a specific warning in advance at ‘high-risk’ times (for example before the Christmas party). If you noticed any holes or grey areas in your policies during your investigation, take the opportunity to refresh them. As with most aspects of employment law, communication and vigilance will mitigate future risks.

We know that dealing with a harassment complaint can be exceptionally sensitive and stressful for HR teams. If you have any questions or need support please get in touch with your usual Weightmans advisor.