The recent suicide of ex-Welsh Minister, Carl Sargeant, raises important questions about the rights of those accused of sexual harassment in the workplace and the steps an employer should take to protect the accused as well as the complainant.
When an allegation of sexual harassment is made by an employee (“complainant”), an employer must be careful to balance the need to fully investigate the allegations, whilst keeping firmly in mind the possibility that the allegations may not be proven - and may even be malicious.
The complex issues that can arise when investigating allegations of sexual harassment underline the importance of following a policy that is clear about what should happen during an investigation, and in what order. The issue of confidentiality and how to protect both parties needs to be considered and addressed at an early stage in the process.
If suspension is necessary and appropriate, an employer should emphasise to the employee that it is a neutral act pending investigation and is no indication of guilt. The kneejerk reaction, which is to automatically suspend, can have serious consequences for all parties and on any on-going relationship with the accused employee. Factors determining whether there needs to be an immediate suspension include:
- How serious the allegations are;
- The effect on the complainant of the employee’s continued presence at work;
- Whether the complainant usually has day to day dealings with the employee;
- The number of witnesses that need to be spoken to and whether an effective investigation can be undertaken with the employee remaining at work;
- Whether the employee can be relocated away from the complainant
What members of the team, and the wider workforce, are told about why the employee is absent for work should be agreed with the employee where possible. The explanation should be kept as neutral as possible, such as s/he has had to take some unexpected leave.
Importantly an accused employee does not have legal rights which s/he can rely on to dictate the process followed. However, an employer needs to take care not to undermine the mutual trust and confidence with the employee so as to irreparably damage the employment relationship and bring it to an end. In these circumstances, an employee could resign and bring a claim of constructive dismissal.
Resolving what has happened and who is telling the truth can be extremely difficult for managers who will probably be unfamiliar with presiding over complicated cases where there are disputes of fact. Unlike a court where, following a hearing, the parties can often go their own way, in the employment context there is the post grievance integration that will need to be considered unless the accused has been dismissed. Employers therefore have a difficult line to tread.
Employment Partner, DMH Stallard LLP
This article was first published in The Times on 17 November 2017