· Comment

Allegations of sexual misconduct in the workplace: innocent until proven 'guilty'?

This week Tony Danker stepped down from his role as director general of the Confederation of British Industry (CBI) while an independent investigation into allegations of sexual misconduct takes place.

As reported by The Guardian the CBI has stated an allegation was raised in January 2023 which was investigated and it was found that it did not warrant a disciplinary process.

Further allegations were then raised on 2 March which are currently being investigated. Given no findings have yet been made nor any disciplinary process initiated, the CBI emphasised in their media statement that “it is important to stress that until this investigation is complete, any new allegations remain unproven".

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In many cases, allegations of this nature are investigated internally within an organisation and the outcome does not necessarily enter the public domain, depending on the public profile of the individual and the organisation. However, when allegations are reported to the media, the reputational impact is significantly heightened and its effect can come before any findings have actually been made.

Allegations are not proven until they have been investigated and findings made as to whether the alleged incidents did in fact occur, nonetheless when allegations enter the public domain they inevitably have considerable, if not seismic, reputational consequences for those involved.

A complainant raising allegations of this nature will usually be protected by anonymity, but it may be more difficult to offer similar protections to a respondent during the investigation process, particularly where they might have to stand down or temporarily not perform their role.

Whether a respondent has a right to privacy in respect of an employment investigation has not yet been tested by the courts and is an extension of the principle from the Supreme Court case of ZXC v Bloomberg that those subject to police investigation have a reasonable expectation of privacy.

In the CBI matter it is notable that Tony Danker is reported to have chosen to step down while an independent investigation takes place. In other cases, depending on the circumstances, it may be necessary to suspend employees pending the outcome of the investigation.

This may be, for example, if their continued presence could pose a threat to the business, other employees or the investigation itself. However, what has been made clear by recent ACAS guidance released in September 2022 is that suspension should never be a knee-jerk reaction.

The ACAS Code on Disciplinary and Grievance Procedures states: “In cases where a period of suspension with pay is considered necessary, this period should be as brief as possible, should be kept under review and it should be made clear that this suspension is not considered a disciplinary action.”

If an organisation deems it appropriate to suspend the respondent, it will be important that the way their absence is communicated internally (and externally where applicable) is considered carefully so that they don’t expose the organisation to the risk of a defamation and/or misuse of private information claim.

In addition to considering the safeguarding of the complainant, the new ACAS guidance on suspensions emphasised the need to focus also on the respondent’s mental health and wellbeing while suspended, given they are likely to be extremely anxious, not only about the allegations made but also the impact their suspension may have on their career.

Sometimes respondents to allegations may also weigh up whether or not to resign before the outcome of an investigation. This may not evade a disciplinary process as a decision can be made by the organisation in the absence of the respondent and in regulated industries any disciplinary findings may have to be referred to in any reference.

However, regardless of the outcome, some may feel that in reality it will be difficult for them to return to the workplace and they may prefer to leave the organisation as soon as possible. It is also important to be mindful that a respondent who has concerns about the fairness of an investigation process may resign and claim constructive unfair dismissal.

Overall, employers should seek to maintain confidentiality of all those involved throughout an investigation as much as possible in order to ensure the fairness of the process and to protect the reputations of all parties including the respondent.

Where allegations are reported to the media, being seen to follow a robust process and take an even-handed approach is the next best protection for an employer who is essentially in the middle and can only seek to ensure fairness to the parties in order to protect the reputations of all involved. 

Eleanor Lynch is an associate in the employment law team, and Rebecca Ryan, an associate in the reputation management team, at Kingsley Napley