There has been a noticeable increase in the number of allegations of sexual harassment over the past 12 months. This trend, commonly attributed to the publicity surrounding the David Jones/McInnes/Fraser-Kirk case in 2010, has been reported by employment lawyers generally, and has also been noticeable in our practice.
Employers need to be aware that the risk of sexual harassment or discrimination claims has increased significantly.
The issue doesn't have to be about 'mega-dollar claims' to be a significant risk. In many instances, the employer receiving a complaint of sexual harassment has never had to field such an issue before, and is starting from scratch on the necessary steps and the various risks which arise. Each situation is different and requires very careful handling, as the employer is at risk of a discrimination claim by the person claiming to have been harassed, but at the same time may face unfair dismissal proceedings or other claims in relation to the discipline, or termination of the employment, of the alleged offender.
What constitutes "fair process" as well as "adequate investigation" will differ depending on the circumstances (including the gravity of what is alleged to have happened, situation in the workplace, seniority of the employees involved, evidence available etc) but the matters to be considered include:
- avoiding prejudgment (in either direction)
- obtaining and working with reliable evidence, not rumour or assumptions
- putting allegations to the alleged offender and getting his/her response and evidence from other staff who may have witnessed the conduct at issue
- giving appropriate support to the complainant and offender and making suitable arrangements regarding ongoing relations in the workplace
- approaching things efficiently and practically (an employer is not required to act as if it is a court of law) and being seen to do so
- maintaining an appropriate level of confidentiality and addressing workplace gossip.
Of course, prevention is better than cure. What can you do in advance to minimise the chances of sexual harassment happening?
- Have up to date policies on discrimination, equal employment opportunity, harassment and grievance handling, which are periodically refreshed for staff and which provide a reference point.
- Ensure that managerial and supervisory staff are well aware of their obligations to deal with any harassing or potentially harassing conduct so as to intervene to stop problematic conduct before it causes a complaint.
- Provide training periodically to refresh these issues for employees.
- Ensure that management is seen to abide by and enforce policies, so that employees expect that offensive behaviour will not be tolerated, and that complaints will be promptly and adequately dealt with.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.