I was at a networking event the other night and the hot topic of conversation amongst the guests was the allegations that have been made against Hollywood producer, Harvey Weinstein. Everyone agreed that, if the allegations are true, his behaviour was heinous and entirely unacceptable. He was a man in a position of power, who (allegedly) preyed on vulnerable women, threatening to kill the careers of anybody who dared to defy him. That was, obviously, abusive and predatory.
It was the subsequent fallout – and the numerous historic allegations made against producers, actors, MPs and others besides – that dominated the thoughts of those at the event. Many of them are business owners, concerned that the floodgates have opened for staff to make sexual harassment allegations against their colleagues. How should they deal with those allegations? What is their duty of care?
As an employment lawyer and HR practitioner, I am fully alive to the complexities presented when an employee makes allegations of sexual harassment against another. Here are my top five tips for dealing with such allegations:
- Take the complaint seriously … but don’t go over the top – too many employers fall foul of this fundamental rule. However trivial the complaint might seem to you, and however historic, don’t dismiss it out of hand. If such complaints are not taken seriously, it’s amazing how things can snowball. Similarly, though, don’t charge in like a bull in a china shop and make a bigger deal of it than the complainant intended. Take time to listen, be sensitive in your response and try to get an understanding from the individual as to what outcome they are looking for. Talk them through the likely process (which, depending on the circumstances, might include an investigation, grievance process and disciplinary against the alleged harasser) and reassure them that you will support them – but make sure that is what they want.
- Two sides to every story – however bad the allegations might seem, try to avoid jumping to any conclusions until you have had an opportunity to investigate further and, at the very least, get the accused’s version of events. In the employment arena, “guilt” isn’t held to a criminal burden of proof (i.e. beyond reasonable doubt) but you should still bear in mind that people are innocent until you have reason, on the balance of probabilities and having undertaken an appropriate investigation, to decide that they are not.
- Intention is irrelevant – when it comes to deciding the tricky question of guilt, remember that the alleged perpetrator’s intentions are irrelevant when deciding whether there was harassment in the legal sense. Harassment occurs when the conduct is unwanted and where it has the purpose or effect of violating the recipient’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for him/her. In other words, it is the recipient’s perception of the conduct that is all important, not whether the perpetrator intended for the recipient to feel harassed.
- Think about the bigger picture – don’t get so caught up in the process, that the substance gets lost. Remember that you are dealing with people, and the way in which you handle any complaint will have a knock-on effect throughout the whole organisation. The temptation might be to suspend immediately the person who has been accused – and that certainly might be the appropriate course of action depending on the circumstances – but you ought to think carefully about the pros and cons of this approach. Consider whether the impact of that decision, both in terms of internal perception and business operations, might outweigh the benefit. There may be other ways around the problem.
- Take advice! – negotiating your way through this particular minefield is tricky. The consequences of getting it wrong, both legally and internally from an HR perspective, could be serious. Emotions often run high and it can be difficult to remain entirely objective. An external adviser will be worth their weight in gold. Not only can they help you get the process right, but they can provide an independent point of view … as well as a sanity check (and someone to lean on) when you need it.
If you have any questions about the topic of this blog, or any other area of employment law, please call a member of our specialist employment law and HR team.