The #MeToo movement has shone a light on the epidemic of sexual harassment in the workplace. It is a serious problem in all industries, from media, professional services and also government, and it should be taken very seriously.
A BBC survey in November 20171 found that 40 per cent of women and 18 per cent of men had experienced unwanted sexual behaviour in the workplace. Evidence presented to the Women and Equalities Committee is difficult reading2, and reiterates the need for all employers to ensure that they have a safe environment for their staff which is free from harassment.
This briefing note highlights some of the key considerations HR Directors and business owners should bear in mind when they receive a complaint of sexual harassment.
Policies – Consider what HR policies you already have in place, and map out what you would like to have. Do you have a specific anti-harassment policy in place, or would you use an existing grievance procedure, or perhaps a whistleblowing procedure?
Our Recommendations - We recommend a strong equal opportunities statement, and also an anti-harassment policy – or a Code of Practice - which explains that you have a zero-tolerance culture and sets out what steps management would take when they receive a complaint. This is to de-mystify the process so that it is transparent and easy to understand as this may alleviate the added anxieties that may come from making a complaint and starting the formal process. You may wish to have a presumption that all complaints shall be investigated, unless there is a compelling reason not to do so.
New employees should be made aware of the zero-tolerance approach at the earliest opportunity – perhaps at the pre-joining phase, or during the induction process.
Awareness and Training – Could you be creative and arrange an anti-harassment awareness session and then follow that up with a specific training session for your staff with examples of what is acceptable and what is not acceptable.
Planning and lessons from the past – Have you ever received any complaints of sexual harassment in the past? If you have, then what lessons have you learned from that, and what feedback have you received on the process which was carried out. On reflection is there anything else that you, or your colleagues, could have done to prevent the act of harassment taking place. What happened to the alleged perpetrator and the complainant? Are they still employed by the business? Have you ever carried out any risk assessments as to how any sexual harassment might take place – such as work/client social events?
Consider removing Non-Disclosure Agreement (NDA's) – If your business has used NDA's in the past – or if there is an NDA provision in the employee's employment contact - which prevent what an employee can say then consider removing those provisions. The #MeToo movement has shown that there has been a plethora of cases where NDA's have been used in an unethical way to silence victims, and are sometimes used as a threat against employees.
- What support can be given to the complainant? Could the individual benefit from specialist support?
- How can you seek to ensure that they are not victimised?
- How will you record the complaint?
- Who is made aware of the complaint?
- Who investigates it?
- What do you tell the alleged perpetrator?
- Should the alleged perpetrator be allowed to be accompanied to investigatory meetings by his/her lawyer?
- Do you need outside help from an independent HR professional, or independent law firm?
- If so, how should you report it – should it be anonymised?
- Are you required to update the regulator on the outcome of any disciplinary?
- Do you have any obligation to report allegations to a professional regulator?
- Do the allegations impact on his/her fitness to practice?
- Should you consider suspending the individual? What effect could that have on his/her reputation?
- Do you need to involve the Police?
- How can you seek to ensure that all parties have confidence in the handling of the complaints process?
- Do you need to take advice from a criminal lawyer or data protection, as well as an employment lawyer?
- How can you ensure that any investigation is carried out in a manner which does not prejudice any potential police or criminal investigation?
- Remember not to overpromise by giving any absolute assurances about confidentiality or anonymity.
- Consider speaking to a PR professional to seek advice on managing the message internally and externally.
If the employee brings a claim in the Employment Tribunal how will we pay for it?
Litigation in the Employment Tribunal is expensive when compared to other methods of dispute resolution such as mediation, judicial mediation (a service offered by the Employment Tribunal service), conciliation (via ACAS) or direct negotiation with the employer or employee. When carrying out negotiations that it may well be the desire of the complainant that they wish to stay in their role.
You should check the terms of your office insurance policy to establish if that includes legal expenses insurance (known as LEI) for defending claims in the Employment Tribunal.
If you do have LEI then you should check what the policy says about how you are able to request funding in your case. The usual process is to notify the insurer of the situation – with as much detail and supporting documents as they request – to enable them to decide whether you are entitled to cover. Their analysis may involve considering the time from when the incident (e.g. the dismissal) occurred and when you notified them. They will also consider the prospects of success of your proposed defence to a claim. Terms of insurance policies vary, but ordinarily an insurer will not agree to provide cover unless your defence to a claim – or an analysis of each potential individual defence to a claim – has a prospect of success which is 51% or more.
If your insurer does agree to cover the legal fees of your claim they may – initially – insist that you use their panel solicitors. You – as the policy holder – have the right to instruct whichever law firm you wish to represent your business, and if you feel strongly that you would like to instruct another firm – such as ebl miller rosenfalck – then you should inform your insurer. We can then review the terms that your insurer suggests, and discuss this further with you.
What information and documents will your employment lawyers need?
We will wish to ascertain the following preliminary information
- Background – including details of the role of the individuals concerned and details about the business of the employer
- Details of the length of service of each employee
- Details of the method of dismissal (if relevant) – to establish if a correct procedure was carried out
- A copy of the contract of employment of the relevant employees and the staff handbook
- The date of the alleged acts/incidents/dismissals – to establish if the employee is within the statutory deadline to bring a claim
- Correspondence – We would need to consider all the relevant correspondence between the employees and the employer
There are some stages in the Tribunal procedure where you feel confident enough to carry that part without the input of lawyers. That could include, for example, preparing witness statements of reviewing disclosure documents. Whilst it can create some difficulties in defining the scope of a retainer with any client if this does occur, we are always keen to engage in dialogue with our clients to find the best solution for you.
Types of Employment Tribunal claims that the ebl miller rosenfalck employment team advise upon
We at ebl miller rosenfalck are instructed on high value discrimination cases (which are often complex and require several members of the team to work on the matter), cross border litigation, or matters of critical importance to a company, or a matter which is likely to set an important legal precedent.
Further details of the extensive experience of our team can be found in the employment section of our website and the individual LinkedIn profiles of our team members. Our website also lists further details of testimonials from our clients.
There are also other related matters – which might not be the focus of the litigation itself, but might arise as part of a grievance or complaint – such as dealing with a request for data under the Data Protection Act 2018/GDPR or regulatory/criminal matters. Those matters will require specialist advice.
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.