Harassment cases tend to attract media attention, and so it is important that they are carried out in a considered and fair way. Household brands have suffered significant reputational damage because allegations of workplace harassment have not been handled appropriately, so how do you avoid this?
“78% of our webinar attendees said they had received allegations of harassment or bullying in their organisation” showing that this is an issue most businesses will come across at some point.
Investigate, rather than determine guilt. Even if an individual refuses to cooperate, the investigation and the process must still be carried out in an unbiased way.
When is it right to suspend?
In the UK, things have changed in recent years, and we have seen a few cases where very serious allegations were made, the individual suspended, causing damage to their reputation. They were able to claim constructive unfair dismissal against their employer because the employer hadn’t considered the issue of suspension carefully enough. The decision-making process and discussions around the question of “why are they suspending” should be recorded to provide evidence of that decision if asked. It is also important to check the contract for a contractual power to suspend. Whilst the absence of such a power may not exclude the ability to suspend, it is easier if such a power exists.
The accuser wouldn’t ordinarily be suspended in the UK – this would be looked on unfavourably and again, could attract significant media attention and reputational risk. Changing reporting lines while an investigation takes place is often advised if the allegations focus on a manager of the complainant.
The right to confidentiality and anonymity
Can claimants remain anonymous? From a UK perspective, yes they can. In whistleblowing situations regarding regulated businesses in financial services, there has to be a framework for the anonymity of the whistle-blower to be facilitated. This can cause limitations for an investigation and whistleblowers will often be encouraged to identify themselves in order to assist the investigation.
When it comes to confidentiality, as an employer, you may be happy to agree it remains confidential, but this shouldn’t be absolute. It could be discussed and kept under review, as there may be circumstances where more people need to know and their identity revealed for a fair investigation.
3 key takeaways
- Don’t ignore harassment allegations – settlements without appropriate investigation can cause reputational risk
- Terms of reference – be clear on where you’re going with the investigation for the sake of the people involved
- Remain objective – Don’t draw any conclusions until the end
85% of our webinar attendees think their current policies and procedures are fit for purpose, with 70% providing their employees with anti-harassment training” which shows that this is an issue most companies are taking extremely seriously, and no longer just an HR issue, but firmly on the boardroom agenda.
The #metoo movement has shone a light on harassment in the workplace, changing the employment landscape. You need appropriate anti-bullying and anti-harassment policies in place, and to act on them. If you’re going to make out the statutory defence, you must show you have done everything possible to prevent discrimination, or you wouldn’t get that off the ground. Later this year will see a positive statutory duty coming in law, which requires the employee to prevent discrimination failing which compensation may be increased.
If you want to find out more about workplace harassment investigations, watch our recent webinar featuring perspectives from the UK, China, Netherlands and the US.