Disclosure of documents subject to implied undertakings
The first step should be to listen to the complainant’s account carefully. They should be referred to a colleague who has been properly trained to deal with complaints of this type, normally an experienced member of the HR team. The temptation to offer unnecessary assurances of confidentiality should be resisted as the employer will also have
responsibilities to other staff and will usually find it difficult to deal with things, practically, without discussing the complaint with them.
The employer should have a policy document setting out how complaints should be managed, which the HR Manager can refer to during the conversation and which the individual can consider carefully later. This should clarify options for the employee, including how confidentiality can be managed.
The next step will normally be either an informal discussion to try to resolve the issue or a formal internal investigation.
The key here is training, to ensure that all staff know who they should approach if they want to make a complaint and what to do if someone makes a complaint to them. Policies are of little use if employees don’t know how to use them.
It is worth bearing in mind that accounts often differ because of a differing perception of events. Different accounts do not always mean that one party is lying. It may be possible to find related evidence that will assist, but sometimes the employer will simply need to make a judgment based on what they believe to be true. In that case, the credibility of the people concerned will have a bearing on the outcome. It is better to hear the accounts directly in person, in the context of
a properly organised hearing, before making that type of judgment. The employer should take reasonable steps to deal with problems, it is not always necessary for the employer to decide what actually happened in order to do that. Sometimes, it will be reasonable for an employer to take practical steps to reduce the risk of future problems without concrete evidence that an incident did, in fact, take place.
That would rather depend on the nature of the alleged harassment, as if serious it may not be appropriate for the complainant and alleged harasser to continue to work with each other at all. Practical steps that might be considered could include, for example:
Most statutory employment claims should be made within three months of the relevant event. 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 time. Calculation of time limits is very fiddly, though, and this is something that should be checked by lawyers on a case-by-case basis. Statutory employment claim time limits do not, of course, apply to criminal proceedings.
It is important to differentiate between sexual harassment that might be criminal, for example an. alleged rape, and sexual harassment under the employment law (Equality Act 2010) definition, which is much broader. For example, sexist jokes may amount to sexual harassment for the purposes of employment legislation but will usually not be criminal. If crime is suspected, the complainant should be encouraged to speak directly to the police. There may sometimes be an obligation on an employer to report criminal sexual harassment, for example in some environments that are especially regulated, typically where children and vulnerable people are concerned. It is prudent for employers to contact lawyers sooner rather than later in either case.
Yes, and this is something that employers should focus on. Often a weak sex discrimination claim with little related evidence will become a strong and clearly documented sex discrimination claim based on ‘victimisation’. This is not just a question of making sure the correct processes are followed when harassment is reported. Victimisation claims often have their roots in normal human responses to complaints. It is important that confidentiality is respected, where practical, and that HR actively engages with managers and complainants to reduce the risk of retaliation before it occurs.
It is generally unwise to refer to a complaint of sexual harassment in a reference for any potential new employment. A complaint does not, of course, amount to evidence that harassment actually took place and, even if founded, few employers would take this step without a specific regulatory requirement to disclose. Appropriate steps may depend on the purpose of the reference, e.g. a reference request relating to a teacher would be of greater concern than a reference for a receptionist who will always be closely supervised.
Employers may potentially be held responsible to former employees and third parties for references that are inaccurate, including where they are misleading by omission, and should be mindful of data protection laws. The provision of the reference may potentially lead to additional discrimination claims. If a settlement agreement is concluded this will normally deal with agreed reference wording and confidentiality.
If you have any questions about the issues raised in this article, please contact a member of our employment team.
See also earlier Kingsley Napley articles for ideas on what you can do to help, as an employer or individual:
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