Below are top tips and points for consideration for employers conducting a harassment investigation.
Be objective, keep an open mind and do not pre-judge the situation.
Both the complainant and the alleged harasser will be under stress. Be mindful of this by dealing with the harassment investigation in a timely and confidential manner, where possible.
Do not make promises about timescales. Inevitably, some unexpected evidence will emerge during the investigation process or the complainant or alleged harasser may be signed off work with stress, so the process should allow for flexibility.
Consider whether it is appropriate to provide counselling to any of the affected employees. Review the terms of any employee assistance programme – counselling may be included.
Consider whether a PR strategy is needed. Is the employee likely to go to the press?
Remember that any documents or notes created during the investigatory and any subsequent disciplinary process which are not subject to litigation or legal advice privilege will be disclosable in any tribunal or court proceedings.
If transcripts are made of an interview and/or meeting, then remember to keep the recording itself, as this will also be disclosable in any tribunal proceedings. Transcripts are useful if you don’t have a reliable, independent note taker available. However be aware that transcripts can sometimes be misleading. People do not always speak in sentences and the intended meaning can be lost in a transcript that does not document the tone or body language used when the statement is made.
Talk to people separately. Avoid having the complainant and the accused in the same room.
If the outcome of the harassment grievance is that a disciplinary process is commenced against the accused, he or she can call witnesses to the alleged incident(s) of harassment at the disciplinary hearing, but he or she should not be allowed to question the complainant as part of the disciplinary process.
Be wary of ‘off the record’ comments. The company is under a legal obligation to investigate every harassment complaint and to consider all the evidence. If the company is aware of a complaint and ignores it, for example because the alleged harasser is the main rainmaker in the company or is in a senior position, the company faces potential liability even though the complaint is ‘off the record’.
Consider whether any remedial steps need to be taken before the conclusion of the grievance or disciplinary process in order to protect the complainant. You may need to take temporary remedial measures during an investigation, but be careful not to inadvertently take action that may detriment the complainant. This could be seen as victimisation.
Don’t automatically, as a matter of course send the complainant home or move the complainant to a different team or floor to separate him or her from the alleged harasser. Consider whether it is more appropriate to move the alleged harasser, particularly if the complainant is a female or more junior staff member, otherwise the Company risks facing a sex and/or age discrimination claim.
Consider a period of suspension with pay for the alleged harasser whilst the matter is being investigated, if there appears to be serious misconduct or a risk to other staff. Suspension must be with pay, unless the employment contract allows suspension without pay.
Keep any period of suspension as short as possible. Inform the employee exactly why they are being suspended and tell them that they will be called to a disciplinary meeting as soon as possible.
Do not use suspension as a sanction and make clear to the alleged harasser that suspension is not an indication of guilt or that the outcome of the investigation or disciplinary process has been pre-determined in any way.
Consider mediation, counselling and training. Training staff about what behaviour constitutes harassment and can expose the individual, as well as the Company to legal and reputational risk is a good idea and should be done regularly. Employees often find it hard to understand that their intent is irrelevant and if an employee reasonably finds their behaviour or comments offensive, then their conduct may constitute harassment. In order to rely on the “reasonable steps” defence in a discrimination claim, an employer will need to show that it took all reasonable steps to prevent the harassment from occurring. Employers should have a clear anti-harassment policy, should train all new employees on discrimination and harassmentas part of its induction process and should ask employees to re-read the anti-harassment policy and confirm in writing that they have done so on an annual basis. Records should be kept of all equality and diversity training which employees attend.
Consider the sanction of redeployment carefully. A transfer to a different location could mean additional expense or a less responsible job, and the employee may have a constructive unfair dismissal claim.
A amended version of this blog also appeared in HR Magazine.