SEXUAL HARASSMENT IN THE WORK PLACE

The recent case surrounding the Liberal Democrats and how they dealt with Lord Rennard after sexual harassment accusations were made against him highlights some of the problems when dealing with such allegations. The widespread coverage of this story also raises important questions about how to deal with sexual harassment in the workplace.

There has been a barrage of sexual harassment claims in the city involving senior executives in recent years. For example, two women claimed that they were hounded out of work by sexist and racist attitudes at the leading investment bank Nomura. They claimed that male bosses made inappropriate comments about their body and what they were wearing. They also claimed that discriminatory references against women were openly made. Nomura strongly denied the claims and the claims were ultimately thrown out by the employment tribunal.

Cases such as this highlight the difficulties faced by employers.  Sexual harassment allegations can be a tricky area to investigate and employers have to make a judgment as to who and what to believe.

In the case of Lord Rennard, the allegations against him were not substantiated as it was necessary to prove beyond reasonable doubt that he was guilty of sexual harassment. It also seemed necessary to prove that he intended to act in a sexually inappropriate manner. As a result he could not be expelled from the Liberal Democrat party, despite the fact that there appeared to be credible evidence of improper behaviour.  Although his subsequent refusal to apologise for his actions did lead to him being suspended from the party, the Liberal Democrats were left open to criticism as many considered that the appropriate course of action should have been immediate expulsion from the party.

Fortunately for employers they do not have to be satisfied beyond reasonable doubt that sexual harassment has occurred, before being able to take disciplinary action against the alleged perpetrator.  If an employer had to wait until it was proven beyond reasonable doubt that the allegations were true, it would create all types of problems in the workplace. The alleged victim could be left unprotected whilst still working in close quarters with the accused.

Instead, the evidential test in showing a dismissal was fair is simply whether the employer believed, and had reasonable grounds for believing that the employee was guilty. Likewise the intention behind the act is not central in establishing sexual harassment. It is the fact that the conduct is related to a person’s sex, or the sexual nature of the conduct, and the issue of whether the conduct violated the alleged victim’s dignity or created an intimidating, hostile, degrading, humiliating or offensive environment for them which determines whether the act constitutes sexual harassment.

Employers should have a policy in place so that employees know how to raise a sexual harassment complaint and how they can expect it to be dealt with.  The grievance procedure can be used but larger employers will generally have a separate anti-harassment policy and procedure which caters specifically for complaints of this nature.

Where an allegation of sexual harassment is made an employer should:

• Discuss with the alleged victim whether the complaint can be resolved informally, either by the victim raising the issue with the person responsible or by someone else doing so on their behalf;
• failing that, the employer should investigate the complaint formally, speak to the alleged perpetrator and any witnesses on a confidential basis, and consider whether any steps are necessary to manage the working relationship between the victim and alleged perpetrator whilst the investigation continues;
• once the investigation is complete, the employer should decide whether it considers  that sexual harassment has occurred;
• if it considers sexual harassment has occurred, the employer will need to deal with the perpetrator under the disciplinary procedure.  Sexual harassment will normally be classed as a gross misconduct offence, meaning that the employer is entitled to dismiss without notice.  Whilst in many cases dismissal will be the appropriate sanction, this will not always be the case.  Jumping to a decision to dismiss without considering any mitigating factors could make the dismissal unfair;
• if the employee’s complaint is not upheld, the employer should consider how best to manage any on-going working relationship between the alleged victim and alleged perpetrator. It may be appropriate to arrange some form of mediation or counselling, or to change the duties, working location or reporting lines of one or both employees. Care is needed here as any detrimental treatment of the complainant could amount to unlawful victimisation under the Equality Act 2010 entitling them to bring an employment tribunal claim and receive compensation;
• if, however, the employer considers that the employee acted in bad faith in making their complaint, it is entitled to take disciplinary action against the employee in accordance with the disciplinary procedure.  An employee who makes a false allegation in bad faith is not protected by the victimisation provisions in the Equality Act.

So provided an employer reasonably believes an employee to be guilty of sexual harassment, has carried out a reasonable investigation before coming to that belief and has conducted a fair disciplinary procedure, it should be able to take disciplinary action, including dismissal if this is considered an appropriate sanction. In many cases, but not all, dismissal will be the appropriate sanction.

Peter Doyle is Senior Partner at UK’s largest employment law firm, Doyle Clayton (www.doyleclayton.co.uk).