Allegations of sexual harassment can have a devastating impact on all those involved, whether or not those allegations are found to be made out or not. 

In the workplace, any such allegations can have far reaching ramifications for the employer, in particular, if those allegations are not investigated and/or dealt with appropriately. 

So what is Sexual Harassment, and what do I do if someone makes an allegation of Sexual Harassment in my workplace?

What is Sexual Harassment?

The Equality Act 2010 confirms that sexual harassment is unwanted conduct, which is of a sexual nature or is related to gender or sex, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual. 

Unwanted conduct of a sexual nature may include a wide range of behaviours. Specific examples would be making sexual remarks, gesturing about someone’s appearance, telling sexually offensive jokes, displaying or sharing pornography, touching someone against their will and, in a worst case scenario, sexual assault or rape.

Sexual harassment in the workplace can happen to and be carried out by men and women, and a person can be sexually harassed by someone of the same or a different sex. Within the workplace, an employee could experience sexual harassment from anyone they come into contact with including a colleague (including a manager or someone in a position of authority) or from a customer, client or member of the public.

So what do I do if someone makes an allegation of Sexual Harassment in the workplace?

If you are notified either directly by a complainant or perhaps you are notified by a third party that an incident of Sexual Harassment has taken place, these are some of the steps that you may want to consider in the first instance:

• Does the complainant need medical attention? 
• Do the police need to be involved? We would always recommend that if the police are required, they are contacted with the consent of the complainant. There may be limited circumstances (if you feel that the complainant’s safety is at risk or if they are vulnerable for some reason) in which case you would want to contact the police and report the matter yourself, but these situations are not the norm, and the wishes of the complainant should be respected.
• Do you need to contact the complainant’s relations, friends, or another work colleague for support? 
• Do you need to refer the complainant onto any other agency, such as your local sexual assault referral centre (SARC) or a counselling service?

Following on from this, as the employer, you will need to consider what steps need to be taken in terms of the workplace, and the parties involved.

Our advice is that those next steps to be taken are made ideally following a discussion with the parties involved as to what their needs are, and specifically what they would like to do in terms of the workplace in the interim period immediately following the allegations being raised.  

It is important that the complainant isn’t made to feel punished or isolated from the workplace, but equally, at this stage where the truth of the allegations may not have been ascertained, the importance of discretion and impartiality cannot be underestimated. 

The matter should be reported to HR as soon as possible.

Following that, employers should consider the following in respect of both the complainant and the accused:

• Whether or not either party needs to take time off work; should the accused be suspended?
• Do the parties involved need to consider amending their working hours, workload or location? Do they need to be / can they be separated from one another?
• Can you consider perhaps putting in place measures to enable the complainant in particular to travel to and from work safely if you are concerned about their safety risk?

The answer to the above will be very much dependent upon the nature of the allegations, the relationship between the parties involved and the needs of the business.

As always, it is crucial that as an employer, you enter into dialogue between all the parties to ascertain what can work for everyone in the days/weeks immediately following the reporting of the allegations.

Do we have to investigate allegations of sexual harassment in the workplace?

In a nutshell, Yes.

If you have been made aware of an allegation of sexual harassment in the workplace, you should undertake some form of investigation. The extent of that investigation will depend upon the nature of the allegations and whether or not the incident raised is a one off, or if there is a recurring pattern of behaviour being alleged.

If you do not undertake an investigation, you run the risk of potential claims being brought against you in the future either in an employment tribunal or by way of a personal injury claim, in particular if there is a further incident and it comes to light that as the employer, you knew of a previous issue and did nothing about it.

More importantly however, employers should be advocating a zero-tolerance approach to sexual harassment in the workplace. If you are given notice of an issue and do not investigate and take appropriate action, this failure could have huge ramifications within the workplace for the culture that exists leading to low staff morale and confidence. 

Therefore, even if the complainant doesn’t want to assist with the investigation, it is important that some form of investigation does still take place, if only to prevent reoccurrences of any allegations being made or any further inappropriate conduct taking place. 

If an investigation is to take place, what do I need to think about in terms of investigating allegations of sexual harassment?

Investigations into sexual harassment in the workplace should be undertaken along similar lines to investigations that would normally take place as a result of any workplace investigations. We refer you to our previous webinar and advice on undertaking investigations in the workplace, available upon request here.

However, there are some further issues that you may want to consider when undertaking investigations into allegations of Sexual Harassment because of the sensitive and often distressing nature of the allegations involved.  

These include the following:

• If possible, and subject to perhaps the police’s view, we would advise undertaking an investigation into the allegations as soon as possible. Having been made aware that an incident has taken place in the workplace, this will be a very distressing time for all parties involved. It is crucial that as an employer, you attempt to limit the time that an investigation into the matter takes to reduce the distress being caused to the parties, again, whether or not the allegations are found to be made out. Therefore, the investigation should take place and the facts ascertained as soon as possible and practicable. Following this, recommendations and appropriate action can be taken in the workplace to enable the parties involved to move forward.
• Remind all parties that the investigation is a fact finding process, and although recommendations can be made in that investigation report, the purpose of the investigation is not to take sides or to apportion blame. It is to find out the truth of the matter. 
• The investigation should take place on a strictly need-to-know basis and liaising with the parties involved is crucial. 
• You may wish to consider who is appointed as the investigating officer, and in particular consider the gender of the person appointed to interview the parties involved dependent upon who they are and what has happened to them. 
• Ensure that the investigating officer is impartial and unlikely to be influenced by the people involved. It is important that the investigating officer acts fairly and objectively and therefore, no conflict of interest or pre-existing relationship with the parties should exist. It is also important that the investigating officer has been trained and is experienced enough to conduct the investigation. In particular, they should have knowledge of the Equality Act 2010 and, therefore, they have knowledge of what Sexual Harassment is.
• It is important that an investigation plan is put in place which considers what the allegations are and therefore what needs to be investigated, what facts need to be established, what evidence needs to be collected and who is required to attend an investigation meeting. 
• In terms of the interviews themselves, and to respect all the parties involved (the complainant, accused and the other witness), it is essential that the matter is kept as discrete as possible and that you provide support, but are not biased in any way. You may want to consider where the interviews take place (away from other employees in a private place), whether the parties being interviewed want support, and confirm that you will be acting quickly on this matter. 
• In addition to obtaining the information regarding what happened, when, what was seen and what was known about the parties’ relationship, it is worthwhile also asking for the parties’ views and requests of the outcome of the investigation. 
• Again, at the conclusion of the interviews, it is always worth in particular highlighting or referring those parties to other support services if appropriate. 

After the investigation has taken place, what happens next?

The investigation report that is provided should aim to provide a determination upon what happened and whether the allegations have been made out against the accused.

Dependent upon the outcome of that investigation, the following should be considered:

• Disciplinary action could be taken including dismissal of either of the parties, dependent on the outcome of the investigation. A formal grievance by the complainant or the accused may be made.
• Updating your practices and procedures or your policies or risk assessments may be required. 
• Further or better training may need to be delivered to your employees in respect of Sexual Harassment in the workplace, what is and is not acceptable, and how to reduce the risks. 
• Supervision and monitoring of the parties involved going forwards may be required.
• If, in particular, the complainant’s allegations are found to be true, you may want to consider allowing them time off for undertaking therapy, or attending court appearances. 
• Whilst the parties involved deal with the aftermath of the allegations; you again may want to consider amended workloads, hours and location.

As always, it is important to ensure that you keep lines of communication between the parties open and try to support any requirements as best you can.

Dealing with allegations of Sexual Harassment in the workplace are not easy, and the experience is often incredibly distressing for everyone involved. Difficult decisions including whether to contact the police, whether to investigate in the face of an unwilling complainant, and how to deal with the parties whilst they work together will need to be made. As the employer, it is often tricky to balance the needs of all involved whilst protecting the day to day business. 

Should you have any concerns with how to deal with and investigate allegations of sexual harassment taking place in the workplace or how to protect your employees in light of such situations occurring, or you have any other health and safety queries with regards to your duties as an employer to protect your employees in the face of sexual harassment, please do not hesitate to contact the team at Prettys.