Not all victims will come forward but if HR is alerted to a problem, how should it respond?
Conduct an investigation and bear these tips in mind.
1. Stay objective and do not pre-judge the situation. Always act in a timely and confidential manner, but do not make promises about timescales.
2. Consider whether the affected employees need counselling. Your firm may include this in its staff assistance programme.
3. Do remedial steps need to be taken in order to protect the complainant? Be careful not to take action inadvertently that could be detrimental to the complainant as this can be victimisation.
4. Is a PR strategy needed? Is the employee likely to go to the press?
5. Remember that any documents created during the investigation or subsequent disciplinary process that are not subject to litigation or legal advice privilege can be disclosed in a tribunal or court proceedings.
6. If transcripts are made of a meeting to discuss the complaint, keep the recording itself, as this will also be disclosable in any tribunal proceedings. Be aware that transcripts can be misleading. People do not always speak in sentences and the intended meaning can be lost. Transcripts cannot document the tone or body language used when the statement is made. Meeting notes are an alternative.
7. Be wary of ‘off the record’ comments. The company is under legal obligation to investigate every harassment complaint and to consider all the evidence. If the company is aware of a complaint and ignores it, the company faces potential liability even though the complaint is ‘off the record’.
8. If it comes to a disciplinary process against the accused, he or she can call witnesses to the alleged incident(s) of harassment, but he or she should not be allowed to question the complainant.
9. Don’t automatically send the complainant home or move them. It may be more appropriate to move the alleged harasser, particularly if the complainant is a female or a junior staff member, otherwise the company risks facing a sex and/or age discrimination claim. If there appears to be serious misconduct or a risk to other staff, consider suspension with pay for the alleged harasser while the claim is investigated. However keep this period as short as possible and inform the employee exactly why they are being suspended.
10. Make it clear to the alleged harasser that suspension is not an indication of guilt and the outcome of the disciplinary process hasn’t been pre-determined.
11. Consider the sanction of redeployment carefully. A transfer could mean additional expense or a less responsible job, and the employee may have grounds for an unfair dismissal claim.
12. Ensure training and policies are up to date. Training staff regularly about what behaviour constitutes harassment is important as it can help to show that an employer took all reasonable preventative steps. This provides a “reasonable steps” defence for the company in a discrimination claim. Employers should have a clear anti-harassment policy as part of its induction process. Ask employees to re-read the anti-harassment policy annually and confirm in writing. Records should be kept of all equality and diversity training.
Some harassment cases are clear-cut. In other situations employees find it hard to understand that their behaviour or comments were offensive. Mediation can be a good way to bring parties together to resolve issues and prevent complaints turning into full litigation proceedings.
Michelle Chance, is an employment partner at Kingsley Napley and co-founder of the Association of Professional Working Parents.
Read HR's report on the Opportunity Now findings here.
