In the era of “Me Too”, people are becoming more vocal about behaviour that oversteps the mark.
For employers, receiving allegations of sexual harassment can be jarring. Due to the serious and sensitive nature of such complaints, employers will understandably want to approach the situation with caution; however, choosing to turn a blind eye or passing an employee’s behaviour off as banter can invite claims for sexual harassment.
If you’re unsure how to handle complaints of sexual harassment in the workplace, the following is a real-life example of how a case of this nature might play out, and how we would advise employers to navigate the process.
Case study: Allegations of sexual harassment against a manager
What led to the grievance?
In this particular case, the client contacted their dedicated Employment Law Adviser, who they call upon regularly for expert guidance on employment-related challenges, after receiving a sexual harassment complaint from one of its employees. The employee had raised issues with their manager’s conduct, which they claimed was extremely unprofessional and at times very inappropriate.
The complainant alleged that the manager had made sexually suggestive remarks towards her regarding her appearance, would stand very closely behind her for no reason, and at times would just stare at her, which made her feel awkward and uncomfortable. He had also allegedly spoken to her in an aggressive manner in front of other members of staff, which made her feel intimidated and humiliated.
Unsure how to proceed, the client asked for our advice on next steps.
Plan of action
We agreed that the concerns were very serious, in particular those relating to sexual harassment. We advised the client to investigate the matter fully, both with the complainant and any witnesses to the incidents in question. Following this, the next step would be to investigate the matter with the manager and to give him an opportunity to comment upon on the allegations against him.
We explained that, depending on the outcome of the investigation, it may be necessary to take disciplinary action. As the manager had been with the company for less than two years, if the grievance was upheld, the client could consider potential dismissal because allegations of this nature are always categorised as being gross misconduct, and the manager did not possess the qualifying service to raise a claim.
Setting up a meeting
We then provided the client with a letter to invite the complainant to an investigation hearing, which explained who would be conducting the meeting and their right to be accompanied by a colleague or accredited trade union representative. Attached with the letter was a copy of the company’s grievance procedure taken from its Employee Handbook which we had produced for them when they became a client.
Exploring the complaint
At the investigation hearing, the complainant stated that everything had been fine at the beginning, but that what had started as “banter” had progressively escalated to a point where it made her feel uncomfortable. After going into more detail about the incidents she had outlined in her grievance, the manager chairing the meeting confirmed that the company would be investigating the matter with others involved to obtain their version of events.
The complainant was asked whether she was happy to continue working alongside the manager until investigations had concluded. She confirmed that she was; however, she would struggle going forward if his behaviour did not change.
The client then conducted an investigation hearing with the manager to explain the nature of the grievance raised and allow him to respond.
The manager accepted that he had made comments that were, in his mind, just playful banter. He accepted that he would stand behind the complainant sometimes for the purpose of checking what she was doing but denied that he would stare at her.
On our advice, the manager chairing the meeting stressed that these were just allegations at this point and that nothing had been proven yet.
Not acting not an option
The client proceeded to speak to witnesses and obtain statements, which confirmed that manager’s comments had been “quite close to the knuckle”.
The client expressed that they were reluctant to go down the disciplinary route with the manager as they were of the opinion that this was just workplace “banter”.
However, we warned that despite the manager’s perception of events or how his actions were intended, the complainant still had a legal basis for a claim as she would only need to establish that it was reasonable for her to feel harassed based on what was said. If the client neglected to take action, the complainant would have grounds to allege that her serious concerns had fallen on deaf ears and this may result in an Employment Tribunal.
The client understood and was happy to follow this advice.
Formal written warning
Because the client’s investigations upheld the claimant’s grievance, we advised the client to initiate a formal disciplinary procedure, following which the manager was issued with a formal written warning (to stay on file for at least 12 months). This explained the reason for this decision and that any other misconduct on his part may result in further disciplinary action resulting in potential dismissal.
We provided a draft of this document to the client.
Top tips for dealing with sexual harassment complaints
- Investigate – We recommend that employers treat all allegations of sexual harassment extremely seriously and conduct thorough investigations with all parties concerned.
- Take action – If it is demonstrated that an employee has indeed been sexually harassed, it is essential that the appropriate disciplinary sanction is given – ordinarily dismissal.
- Consider training – If there seems to be a culture of “banter” or taking matters such as sexual harassment lightly, it is advisable to consider equality and diversity training in order to educate your employees as to what is acceptable behavior while at work and what is not.
The value of professional support
When confronted with difficult situations such as sexual harassment complaints, having support from a professional can provide valuable reassurance. In this case, the client had access to one-to-one assistance, with documentation drafted for them throughout, and were able to overcome the issue quickly, safe in the knowledge that their actions were legally-sound and didn’t leave them exposed to the risk of an Employment Tribunal claim.
With Ellis Whittam’s unlimited, fixed-fee HR and Employment Law service, you can call on a dedicated adviser, who has a deep understanding of your business, at any time. To discuss how this can help to take the stress out of difficult situations and expertly navigate employment-related matters, call 0345 226 8393 today.