Employment law clinic No 3 Sexual harassment allegations

The
challenge:  A company has received an
allegation from one of its staff that she has been sexually harassed by her
manager. She wants the manager removed while the company handles the issue.
There are no witnesses to the alleged incident. There is a provision in the
manager’s contract which gives the company power to suspend the manager. Sarah
Lamont weighs up the issues

Legal
issues


The company must look at its policies and procedures for dealing with harassment.
If there is no separate policy covering harassment, it should look at the
grievance and disciplinary procedures instead. 


If the procedure to be used is contractual, it will give both the employee and
her manager rights in the way the matter is handled. If the company wishes to
depart from the procedure for any reason, it should obtain their agreement.
There is more flexibility if the procedure is non-contractual although, if the
process results in the dismissal of the manager, failure to follow the
procedure could mean the dismissal is unfair.


The company can be vicariously liable under the Sex Discrimination Act 1975 for
the manager’s actions. It must show that it has taken all practicable steps to
prevent the alleged harassment and handle the process properly in order to rely
on its defence to that liability under section 41.3 of the SDA,  but should avoid "knee-jerk"
reactions to the allegation.


The company should consider the employee’s request that the manager be removed
during the investigation and decide whether exercising the contractual power of
suspension is appropriate.  In Gogay v
Hertfordshire County Authority, 2000, IRLR 703, the suspension of an employee,
pursuant to a contractual power, to allow investigation of an allegation of
child sexual abuse was still a breach of the implied duty of mutual trust and
confidence, allowing the employee to claim damages for the psychiatric harm
caused.

The
company must ask itself whether it has reasonable and proper cause to suspend,
taking into account the likelihood of the manager’s presence being a risk to
the employee and others and the seriousness of the alleged offence. A temporary
transfer, reallocation of the manager’s duties or period of special leave might
satisfy the objective of separating the manager from the employee.  If there is no contractual power to effect
this, the company will need to agree the chosen option with the manager.


Given Gogay, the company should consider whether, before putting the allegation
to the manager, any relevant facts can be ascertained.  With a one-off incident, checking if the
manager has an alibi for the time of the alleged incident would be relevant if
this can be done quickly and confidentially. 


If suspension is genuinely necessary, the company should give clear reasons for
the suspension, keep him informed of the investigations and before deciding
whether there is a need for a disciplinary hearing, allow the manager an
opportunity to give his side.


During the investigation, the company should not only search for evidence of
"wrong doing".  A statement
should be taken from the employee and provided to the manager. Any lines of
enquiry put forward by the manager should also be investigated.


If the company decides that a disciplinary hearing is necessary, it should give
adequate time for the manager to prepare, set out the allegations clearly,
allow him access to any evidence collected and allow the manager and employee
to be accompanied at the hearing.

HR
issues


Increasingly companies need to have policies dealing with harassment, setting
out unacceptable conduct and the consequent disciplinary penalties.


The company needs to balance the interests of the employee and the accused
manager. Management must be seen to take allegations of sexual harassment
seriously but, equally, should not assume that the alleged harasser is guilty
until proven innocent. Where there are no witnesses in the investigation the
company must be careful not to be seen to be taking sides. 


Suspension should be regarded as a neutral act but in reality co-workers may
believe that "there is no smoke without fire". Suspension of the
manager for this serious allegation, even if subsequently the charges are
founded to be groundless, is likely to damage his position in the company and
could make a return to work untenable.


Consider offering counselling to the complainant employee.


Keep both the manager and the employee informed as the procedure progresses.


Carry out all the investigation as quickly as reasonably possible. Both the
employee and the manager will be experiencing anxiety which can lead to
stress-related conditions.


Where allegations of harassment are well-founded, the company must be seen to
deal with the culprits appropriately, especially if they are at management
levels. For an harassment policy to work well, there must be no suggestion that
management will close ranks or that issues will be swept under the carpet.

Sarah
Lamont is a partner at Bevan Ashford

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