Has your employee made a sexual harassment complaint?
Here are the top 6 issues you as an employer need to be aware of if you receive a sexual harassment complaint from an employee.
- Get off to the right start – avoid ignoring or catastrophising
There are two common ways an employer can mishandle a sexual harassment complaint when it is first reported. The first is that they ignore it. They do this by minimising it (“the alleged conduct isn’t that bad”), or making some preliminary enquiries and accepting denials on face value.
Secondly, the employer may panic and immediately launch a full investigation. This may not be reasonable in all circumstances. Investigations can be stressful and at times disruptive for those involved and the necessity of an investigation should be first carefully assessed.
- Know your business
There will likely be ‘instruments’ (agreements, awards, employment contracts, legislation) which regulate your industry/sector or staff. Some are quite prescriptive about the steps you must take, while others allow discretion in relation to the handling of complaints.
Understand your obligations under relevant instruments and policies. Does your workplace have internal processes it must follow, or is there discretion? Is there an applicable enterprise agreement which outlines how each and every complaint will be handled? Do any of your instruments state you will investigate every complaint? Do any of your instruments contain (sometimes unreasonable) timeframes for handling and investigating? Are steps required to be taken in any particular order? Remember that copies of the process are often provided to the parties and that failure to follow a prescribed process can result in claims.
- Triaging complaints
If you receive a sexual harassment complaint, it is important to assess the information provided.
Look at the information you have received. To appropriately manage a complaint, it is important to identify: the parties involved (who is the alleged victim (the complainant) and the subject of allegation (the respondent)); when the incident allegedly occurred; where the incident allegedly occurred and as much detail as possible about the alleged incident – such as words used, whether the subject touched the complainant and if so, where they touched and how forceful they were.
Consider what other information you will need. Was anyone else present when the alleged incident occurred (i.e. were there witnesses)? Did the alleged incident happen at work or in connection with work? Does the complainant feel safe at work? Do safeguards need to be put in place immediately in order to protect the complainant and other potential victims at work?
Decide on the most appropriate way to take action with the information and resources you have available. Who is going to handle the matter/investigate the complaint? Who is the decision maker once an investigation has taken place? Is the investigator someone internal or external? Ask yourself: Do I have enough information to proceed? If I need more information, who do I need to talk to before going to the respondent? Do I need to speak to a lawyer experienced in handling such complaints? Am I the appropriate person to assess the complaint (do I have a conflict of interest) and whether sufficient preliminary information has been gathered?
- What does the person want?
Don’t make decisions about how to deal with a sexual harassment complaint until you (or your delegate) have sought to understand what the complainant wants. If they make a complaint about low-level issues, but are seeking for the respondent to lose their job, then the complainant needs to have their expectations managed at an early stage. Alternatively, the complainant might be seeking something simple, such as an apology (which a respondent may be willing to provide), or to have reporting lines changed rather than demanding a full-blown investigation. A low-level comment may be dealt with through a facilitated apology or conversation. Early appropriate interventions may avoid the necessity for a formal investigation.
- Keeping the complainant safe
Is it appropriate to stand down the respondent? If standing them down, it must be with pay as no findings have been made. Check any instrument that applies as they may impact your ability to stand down an employee.
What appropriate changes can you make at work? Different reporting lines? Move desks to another area or another floor? Allow someone to work from home or withdraw from certain duties? Can these issues be handled through discussion and agreement, rather than having to give formal directions to the respondent.
- Procedural fairness
Procedural fairness must be applied to all involved in the matter. You need to ensure you are taking complaints seriously and implementing positive steps to protect a complainant from potential future harm. However, a complaint should not automatically result in dismissal of the respondent, even if the complaint is serious. Complaints are to be appropriately assessed and the respondent must be afforded the opportunity to respond to allegations. A direction to work from home or being stood down is not punitive or disciplinary. In the context of a sexual harassment complaint, it is a cautious preventative action. You need to be mindful of the potential impact on all those involved in the investigation, and consider what reasons should be provided to colleagues or clients about why someone is absent from the workplace.
Going forward – ongoing
Workplace investigations are typically complex and sensitive, and require a high level of skill and experience. These management tasks should therefore be given to individuals in an organisation who are competent and appropriately trained. They will be able to assess and manage key issues and questions, such as the role of legal professional privilege and how to ensure confidentiality (to avoid claims of defamation). They will also need to be resilient and take a caring approach to all those involved. This is not only because of the requirement to provide procedural fairness, but because employers have a legal obligation to provide appropriate support to all the parties (more than simply offering the services of their EAP programme). This is particularly the case where investigations are prolonged.
We are here to help
Justitia offers a suite of services for employers to ensure they handle complaints appropriately and provide safe and healthy and workplaces. Our services include training and upskilling inhouse teams in relation to workplace investigations, reviewing the effectiveness of policies and procedures, and coaching inhouse investigators whilst they navigate complex cases. In our practice we also have an interest in early complaint assessment to explore alternatives to investigations, where appropriate.
If you have any general queries or would like to learn how we can work with you and your team, please get in touch by calling Partner, Melissa Scadden or Special Counsel, Taboka Finn.