How Should I Respond To A Sexual Harassment Allegation in My Business in England or Wales?

As an employer, it is your job to create a safe environment where your employees can thrive. This includes creating a culture where an employee feels safe and comfortable to share a complaint with you. However, sometimes an employee may make an extremely serious complaint. For example, they may come to you with a complaint of a sexual nature. This may include an allegation of workplace sexual harassment. It is your responsibility to ensure that you provide a safe working environment for your employees. Therefore, you must take every step possible to prevent sexual harassment. However, in the unfortunate scenario it does occur, you must take these allegations seriously and take action.  

The Chartered Institute for Personnel and Development researched sexual harassment in 2020. They found that 4% of employees had been victims of sexual harassment at work over the past three years. Since making an allegation of workplace sexual harassment is likely to be difficult for an employee, you should be aware of how to respond to an allegation of a sexual nature with care. You must know how to deal with this in the first instance and follow a fair and complete procedure. Furthermore, you should take the allegation seriously and deal with it sensitively.

This article will explain how you should respond to, and manage, a sexual harassment allegation as an employer.

What is Sexual Harassment?

Sexual harassment is when someone behaves in a sexual nature to another person where they do not want it. It could be, for example, sexual comments or sexual advances. This unwanted conduct of a sexual nature, whether intended by a person or not, must have:

• violated the person’s dignity; or
• made the person’s environment offensive, hostile, intimidating, degrading or humiliating.

Often the employee who makes an allegation of sexual harassment in the workplace is also the victim. However, it could also be by someone who has seen the unwanted behaviour of a sexual nature take place.

What Initial Actions Should I Take?

If you encounter a sexual harassment allegation from one of your employees, you should ensure you:

• take the sexual harassment complaint seriously;
• look into the complaint as soon as possible;
• act fairly and sensitively; and
• think about how you will deal with the complaint whilst ensuring everyone involved is made aware of this.

However, due to the nature of an allegation of sexual harassment, an employer may only have the version of events from the victim and the accused. Nonetheless, you can continue with the complaint of sexual harassment where you believe the victim or any other person who has made the complaint. 

Discussing the Allegation

Regardless of which route your employee takes in dealing with the allegation of sexual harassment, there will be an initial discussion between you and the employee about what they claim has happened. When this takes place, you should be mindful that you will be discussing a highly sensitive issue with your employee. You must think about what is appropriate and acceptable to say. You should also keep an open mind when listening to them. 

Here are some points to be aware of. Do not:

• try to put the employee off making a complaint in terms of the length of time it may take;
• tell them that a non-disclosure agreement prevents them from raising the complaint (a non-disclosure agreement is a legally binding contract where the parties agree a confidential relationship preventing sensitive information to be given to others);
• suggest the allegation is not as serious a sexual harassment allegation as they may feel it is; and
• let your personal views get in the way of listening to the allegation, which could include your views on the person concerned and your views on what you think is appropriate behaviour. 

Resolving the Allegation

Suppose you do not have your own policy or procedure that covers dealing with a sexual harassment allegation. In that case, your employee is likely to choose to raise it either informally or formally. However, you must deal with the allegation through a full and fair procedure, as outlined in the Acas Code of Practice on disciplinary and grievance procedures.

On the other hand, it may be because the allegation is too serious for them not to raise it formally. If an employee raises the sexual harassment allegation formally, it would likely be as a formal grievance.

When an employee is too upset to make a formal complaint, you may carry out a formal disciplinary procedure on the person at the centre of the complaint.

What Final Action May You Take?

If you have dealt with the allegation of sexual harassment informally, the action taken may be the victim speaking with the accused, explaining that their behaviour was unacceptable.

The action you take as part of formally responding to an allegation of sexual harassment will be dependant on whether you consider the complaint as valid or not. You can only decide this after carrying out a full and fair procedure and considering any evidence. If you think the complaint is valid, you are ‘upholding’ the complaint.

When you ‘uphold’ a complaint, you are likely to:

• find a way to resolve the complaint in terms of actions; or 
• carry out disciplinary action through a disciplinary procedure.

What Happens if You Do Not Resolve the Allegation

If you cannot satisfactorily resolve the allegation of sexual harassment, the victim may choose to take the complaint to an employment tribunal for legal action. If this happens, the tribunal will carefully consider the way you have dealt with the sexual harassment allegation.

If the tribunal decides you did not, then the tribunal may hold you responsible as a third party for workplace sexual harassment.

There are some rules about an employee choosing to take a sexual harassment allegation to an employment tribunal. Employees must:

• let Acas know that they wish to apply to an employment tribunal for sexual harassment claims; and
• do this no later than three months after the incident.

If the employee does not tell Acas within three months of the incident, the employment tribunal can still take place if:

• they can provide a satisfactory reason; or
• the tribunal considers it fair to go ahead.

Key Takeaways

You must take allegations of sexual harassment seriously and deal with them fairly and sensitively. You may decide to deal with an allegation informally or formally, where you potentially may need to follow a grievance procedure or even a disciplinary one. If the allegation reaches an employment tribunal, they will examine your approach towards the issue. They may hold you responsible for any sexual harassment as a third party if they perceive you have not done all you reasonably could to have stopped it from happening. 

If you need help understanding how to respond to a sexual harassment allegation in your business, our experienced employment lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents for a low monthly fee. Call us today on 0808 196 8584 or visit our membership page.

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