Countering sexual harassment counterclaims

2 May 2019 By Natasha Koshnitsky

What is ‘reasonableness’ in sexual harassment claims and how can employers prepare for counterclaims from an accused? Natasha Koshnitsky reports

Set against the backdrop of the #MeToo movement and the naming and prosecution of high-profile celebrities, the issue of sexual harassment should be high on an employer’s corporate risk list.

Try typing just the # symbol into your internet browser, and #MeToo comes top of the search rankings. Globally, the hashtag #MeToo has been used by the media around 34 million times. 

So, in short, unless your employees have absolutely no interest in the world around them, they will have been exposed to the greater awareness of sexual harassment in the workplace.

They will also be aware of the way those cases that are being publicised are being treated, giving employees greater confidence when considering whether to bring claims. 

Due to the potential for rapid publicity of accusations on the internet before claims are heard by a tribunal, some would argue that guilt is presumed before any concrete evidence is heard. As a result, it is likely that individuals may be accused and suffer severe damage to their reputation before they have the opportunity to dispute the allegations. This can also result in secondary claims from the alleged harasser. 

Having worked for both employers and employees in sexual harassment claims, certain things are clear. There is often a lack of conclusive evidence, not every claimant or respondent is telling the truth and not all claims will be successful. 

Where complaints of sexual harassment are badly managed, an employer can easily end up facing a secondary complaint from the alleged harasser. Depending on the case, an employer could face damages running to tens of thousands of pounds or potentially more if the case and the alleged harasser have received high-profile exposure or damage to their reputation and significant financial loss can be established. Damages can also run into the millions when high earners are concerned. It is therefore important that in handling sexual harassment complaints, both the alleged harasser and victim are treated fairly and with the utmost discretion.

It also important not to lose sight of the fact that not all allegations of sexual harassment are well founded. Often, allegations can arise out of relationship breakdowns at work where there has not been any harassment. This can occur, for example, where an aggrieved party – typically one that has been emotionally rejected – chooses to make allegations against a person who was formerly a partner.

For an allegation of sexual harassment to succeed in the employment tribunal, we need to ask whether it is reasonable for the conduct in question to have the alleged effect. It is not just about the perception of the alleged victim for the purposes of employment law. For this reason, parties should consider some form of independent conciliation or mediation before tribunal proceedings are contemplated, save for in exceptional circumstances.

Some employers may be able to facilitate this process internally, but in a number of cases this is handled badly, with accusations of victimisation by the alleged victim and/or constructive dismissal, discrimination and grievances ensuing from both the alleged victim and the alleged harasser when these matters are handled solely by the employer. An independent third party can assist to navigate these potential pitfalls.

To minimise the risk of a case being handled badly, employers should try alternative dispute resolution, such as conciliation or mediation, run by conciliator or mediator with specialist experience in sexual harassment claims, at the earliest opportunity when such complaints arise. 

Alternative dispute resolution is also likely to be included in the new statutory code on sexual harassment in the workplace to be developed by the Equalities and Human Rights Commission. It can be very helpful to both parties in these circumstances. 

Alternative dispute resolution can run alongside any internal processes and investigations. But underlying everything must be the assumption that until a case is concluded, no party is guilty and strict confidentiality must be maintained by all parties.

Natasha Koshnitsky is an employment solicitor at Archon Solicitors

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