How to bring an allegation of sexual misconduct in the workplace

7 September 2018

Almost invariably having to raise an allegation of sexual misconduct in the workplace will be one of the most distressing and stressful moments in anyone’s career.  Recently the #MeToo movement has undoubtedly emboldened people to raise concerns and has encouraged organisations to take these issues seriously, including scrutinising how historic allegations have been handled.

So here are some key points to be considered before raising an allegation, and whilst you go through the process that is likely to follow. 

1) What legal protection do I have?

If you complain about harassment, bring a discrimination claim or are involved in another person’s discrimination complaint (for example by giving witness evidence) you have specific protection under the Equality Act 2010.  This protection against victimisation is in addition to your protections against discrimination and harassment.  Even if your complaint is not upheld you may not necessarily lose this protection, although giving false evidence or information, or making a false allegation, will not be protected if it is done in bad faith.

Workers who report certain malpractices (such as criminal offences or breach(es) of a legal obligation) by their employers or third parties are also protected so long as the disclosure has been made in the public interest. This is a technical area of law and if you think this might apply, you should consider taking legal advice in advance to ensure you meet the legal requirements.

2) Check the staff handbook for any relevant policies

Your firm is likely to have a Grievance Policy, and some practices will also have a separate Anti-Harassment Policy.  They will set out the process that you and your employer should follow.  This may involve an “informal” and a “formal” procedure. 

An informal process does not mean that no notes will be made, or that the matter will not be escalated to HR and/or senior management.  The severity of your allegation may mean that even if you raise an allegation “informally”, your employer may nevertheless consider that a formal process is appropriate or necessary.

The ACAS Code of Practice on Disciplinary and Grievance Procedures sets out the basic process that should be followed in the circumstances. 

3) What would you like to achieve from the process?

Whilst accepting that no one can “turn back the clock”, it can be helpful to think about the outcome that you would like to see.  Being clear about your expectations at the outset can help your employer to understand. 

4) Who should I raise my complaint with?

Where appropriate, you should follow the process set out in the relevant policy.  If you are not comfortable doing so, for example because your complaint relates to your line manager, then you should ordinarily raise your concerns with someone of the same seniority as the person against whom you need to raise your complaints.

5) Your first account is important

A formal process will generally involve you submitting your complaint in writing.  This is your opportunity to set out your version of events, and to prepare the document at your own pace.  The clearer your account is, the easier it will be for your employer to investigate your complaint.

Any inconsistencies or changes to your version of events during the course of the investigation may come under scrutiny, so it is important to ensure that you are happy with the content of your original complaint. 

6) Can I raise a complaint confidentially?

In order to investigate your allegation, your employer is likely to need to speak to others. You may ask your employer how they are going to maintain confidentiality in such circumstances.  This can work both ways, particularly while the investigation is on-going, and you may be asked to keep the matter confidential to help the firm conduct a fair process.  But any request for confidentiality should not prevent you from taking legal advice or reporting an allegation to the police.

7) How to navigate the investigation process

The firm will need to investigate the complaint and decide if the matter needs to be taken further (for example by instituting disciplinary proceedings against the alleged perpetrator). In many cases, these tasks will be undertaken by different people. 

As part of this process you are likely to be asked for additional information, as your employer seeks to clarify certain details and perhaps reconcile your account with those of other witnesses.  You may have the right to be accompanied by a colleague at any investigation meeting. This can be a helpful source of support.

If there are other individuals that you would like the investigator to speak to, it can be helpful to name them. 

8) Look after your health

The investigation will involve talking about what happened, and being asked questions that you might find difficult to answer.  It is important for you to receive the emotional and, if appropriate, medical support that you need.  Check if your firm offers benefits that might help, such as an employee assistance programme, private medical insurance or access to counselling sessions.

9) What will happen next?

If the firm upholds your allegations, it will make recommendations.  These could include disciplinary proceedings against the individual(s) involved. Appropriate actions will depend upon the severity of the incident(s), and these could include practical measures such as additional training for staff. 

No one can take away the fact that this is going to be a very stressful situation for you to cope with.  But if the right practical steps are taken at the outset the process need not be as difficult as it may seem.  And no one, at least these days, is suggesting it is best to just grin and bear conduct that is unacceptable in the workplace.

This blog was first published in AccountancyAge, September 2018.

Further information

If you have any questions about the issues raised in this blog, please contact a member of our team

Our unrivalled experience in dealing with the highest profile and most sensitive cases involving sexual allegations in the workplace enables us to provide expert advice and support to both individuals and companies when they need it most.

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We welcome views and opinions about the issues raised in this blog. Should you require specific advice in relation to personal circumstances, please use the form on the contact page.

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