How to handle sexual harassment complaints at the work place
How does sexual harassment take place?
Sexual harassment can take place in several ways and can include, inter alia, the following:
- Written or oral remarks that may have sexual connotations;
- Suggestive remarks regarding a workers appearance;
- Questions regarding a worker’s sex life;
- Questions regarding a worker’s sexual preference;
- Making jokes of a sexual or offensive nature;
- Showing sexual or explicit imagery;
- Sending emails with contents of a sexual nature; and
- Any other unwanted conduct.
Employers have an obligation to set clear parameters to workers regarding their conduct in the workplace in order to root out any conduct by workers which may amount to sexual harassment. Employers may be able to prevent sexual harassment from taking place in the first place by drafting a well thought out anti-harassment policy and ensuring that the policy is disseminated to all workers. The policy should clearly state that sexual harassment will not be tolerated, and that any complaints will be thoroughly investigated.
How to deal with complaints of sexual harassment at work?
When a sexual harassment complaint is raised, the worker should be referred to an individual who has been properly trained to deal with complaints of this type, usually within the HR department, to help them present their version of events. The meeting should be recorded and absolute confidentiality should be maintained. The worker should have a copy of a policy document, which sets out how sexual harassment complaints are dealt with. The next step is usually either an informal discussion with the worker to attempt to resolve the complaint or a formal internal investigation by the employer.
In certain situations the complainant may show reluctance to make a formal complaint and refuse to cooperate. As an employer you should nevertheless pursue an investigation when it is suspected that sexual harassment may be taking place. This is particularly the case if the allegations are very serious or there is any suggestion that the behaviour complained of is widespread within the organisation. An employer has a duty towards all its workers to provide a safe and suitable working environment; a failure to investigate suspected incidents of harassment could breach the implied term of trust and confidence.
Even if a complaint is reported to the police regarding sexual harassment, or criminal proceedings are being brought, an employer must still investigate the complaint as an employment matter. The employer is best advised to follow its own internal disciplinary procedures, rather than awaiting the outcome of criminal proceedings.
What is the limitation period for bringing a claim for sexual harassment?
Sexual harassment claims should be submitted to the Employment Tribunal within three months of the last sexual harassment act. It may be possible to link individual incidents, allowing earlier incidents to be included where the latest incident in a ‘chain of events’ is within the three months limitation period.
Does an employer have a duty to report incidents of sexual harassment or assault to the police?
Sexual harassment arising in an employment context (under the Equality Act 2010) must be distinguished from sexual harassment that may be criminal in nature such as sexual assault.
Offensive jokes may amount to sexual harassment for the purposes of employment law but is unlikely to constitute a criminal act. There may sometimes be an obligation on an employer to report criminal sexual harassment too. This may be particularly important in certain environments that are especially regulated, typically where children and vulnerable people are concerned. It is highly advisable for employers to contact lawyers sooner rather than later in either case.
What are the ramifications of an employer not fully investigating complaints of sexual harassment?
Often a weak sex discrimination claim with little related evidence will become a strong and clearly documented sex discrimination claim based on ‘victimisation’. To avoid this situation arising, it may not be sufficient to ensure that the correct processes are followed when a sexual harassment incident is reported. The response of the employer (or human resources in the case of bigger organisations) to reporting of sexual harassment incidents can be a key factor in ensuring that the employee feels safe and protected. This in turn reduces the likelihood of claims for victimisation being made in the event that the complainant does not have sufficient evidence to back up a claim for sexual harassment.
It is important that confidentiality is respected, where practical, and that the HR department actively engages with managers and complainants to reduce the risk of retaliation before it occurs.
By Mahshid Javaheri
After working as a solicitor for 3 years, Mahshid joined Legafit.com as an Editor and contributor of legal content. Mahshid is passionate about connecting practicing lawyer with the wider business community; she helps lawyers create and distribute insightful and actionable legal content that delivers value to businesses, whilst showcasing the lawyers’ expertise.