Fair investigation of sexual harassment claims

If allegations are raised in the workplace, what particular difficulties arise and how do you act fairly to all concerned? 

The death of Welsh minister Carl Sargeant – who apparently took his own life after being accused of sexual harassment and sacked from his job without having been told the particulars of what he is supposed to have done – is undoubtedly a tragedy. But his story also highlights the challenge that many employers will face in the current environment post-Harvey Weinstein and the #metoocampaign.

What do you do if the victim does not want to be named?

A victim’s reticence can be understandable, but it is also important that the alleged perpetrator knows the case she or he is facing. Case law provides guidelines as to how to handle these situations, but if, despite support being offered to the victim, they want to proceed on an anonymous basis, an employer can (dependent upon the circumstances) do so.

Should the alleged perpetrator be suspended?

If suspension will assist for the purposes of the investigation, yes. This may also be wise to ensure other employees do not feel at risk.  

Should the accused employee be dismissed?

As a general rule, it would not be appropriate to dismiss an alleged perpetrator straight away, unless there are exceptional circumstances. This could, for example, occur where facts emerging from a police enquiry are overwhelming. The preferred course should always be to suspend, and then allow the accused an opportunity to defend themselves as part of a fair disciplinary process.

If the matter is subject to police investigation, does that mean any workplace process needs to come to a halt?

There is no obligation upon an employer to await the outcome of a police investigation. You may contact the police to see if they are able to provide information that might assist a workplace enquiry. It is legitimate for an employer to rely upon such information for that purpose. But it is always best practice for an employer to carry out its own enquiry, and not rely upon what the police have provided.

Is the accused employee obliged to answer questions?

Where a criminal process is underway, the employee may be advised to stay silent, or avoid attending a meeting, and an employer should respect that. Nonetheless, that need not stop an employer drawing its own conclusions from whatever evidence may be available, even if that means it does not hear the employee's side of the story.

If the accused is dismissed for harassment, what public reasons should be given?

Ideally, if asked, a statement should simply refer to the fact that the employment has terminated. Others reading the story may know what it relates to. If the employer wishes to make a point in going public, this needs to be done very carefully, and with sensitivity, not least because there may be related criminal or civil proceedings.

If the accusations are found to be groundless, what happens next?

Someone wrongly accused of sex harassment will have found the whole experience traumatic. They will be looking for employer support to reintegrate them into the organisation (if they feel that is possible). Other employees will be watching too, to see how the employer protects the employee who had to go through such a process. The employer may want to consider whether it is appropriate to take action against the false accuser, but that will very much depend upon the circumstances.

Some have suggested that we have reached the stage whereby there should be a presumption that victims of sexual harassment are telling the truth. I am not sure I would go that far, but employers are under a duty to offer employees a safe system of work and an environment in which they are not put at risk. We have seen in recent weeks how when one person comes forward to make allegations, others may summon up the courage to do likewise. Sex harassment allegations are among the most difficult for employers to investigate; however, there is no alternative but to do so promptly, sensitively and lawfully.

Richard Fox is head of employment law at Kingsley Napley