A series of highly public scandals at large institutions such as the CBI and, more recently, McDonald’s have highlighted how important it is for employers to root out sexual misconduct and cultural misogyny before it becomes endemic in an organisation, says Naomi Greenwood.
Businesses have a moral and legal responsibility to protect their employees from workplace harassment. This means that when sexual misconduct claims occur, they need to investigate them swiftly and seriously. Attempting to brush misconduct allegations under the carpet leaves employees vulnerable to harassment and exposes the business to the risk of legal action later.
That is easier said than done though. Misconduct cases are often complicated and many businesses do not feel confident about how to manage them. Thankfully, there are some simple best practice measures, which any business can adopt to make sure they deal with misconduct sensitively and effectively.
The law around workplace harassment
The 2010 Equality Act protects employees from sexual misconduct. Essentially, the act prohibits any behaviour which violates an individual’s dignity or creates a hostile work environment for them. If any employee feels they have experienced any sexual conduct that has had this effect, they are entitled to formally complain.
If a complaint is raised – Employers must be able to demonstrate that they have taken reasonable steps to address workplace sexual misconduct. That means it is legally important that they have best practice measures in place to handle any incidents.
The cornerstones of a proper investigation
Accusations of sexual misconduct can seriously damage an individual. So, before taking any action against the accused, employers would be best advised to conduct initial enquiries to ascertain a claim’s credibility.
If the accusation is credible, employers may wish to suspend the accused employee. Although unpleasant, suspension is a neutral act which does not imply guilt. And, crucially, it means the allegations can be investigated smoothly and without risk of intervention from the suspended party.
When it comes to the investigation, businesses need to carefully consider who should be conducting the inquiries and which individuals they should be speaking to.
It can be helpful to bring in third-party investigators, as their distance from the individuals involved will help them neutrally assess the situation. That might not be possible for all businesses. When it is not, the investigation should be led by figures within the business who are senior enough not to be influenced by office power structures.
It is also important to speak to individuals beyond those that are immediately involved with the incident. This should help to build up a more complete picture of the relationships between relevant parties, and the accused’s general behaviours.
Taking every claim seriously
It is important to tackle sexual misconduct claims head on. Some employers try to brush them under the carpet, by offering a financial settlement to an employee or moving them to a different department to separate them from the accused.
There are a couple of issues with this approach. Firstly, it fails to change workplace culture. It does little to compel the perpetrator to reform their behaviour and sends the wrong message to the rest of the workforce. This heightens the risk of further incidents of misconduct occurring in the future.
Secondly, it could carry risks for the employer. The Equality Act protects employees against ‘victimisation’ – being treated less favourably because they have raised a complaint about discrimination or harassment. Hence, employers could be vulnerable to victimisation claims further down the line, if the action they take to brush the complaint under the carpet negatively impacts the complainant.
In a nutshell, organisations need to be brave and proactive in dealing with workplace misconduct. All employees should be made aware that misconduct will not be tolerated. And, what really matters in all cases is that when claims do emerge, they immediately make the time to investigate them properly and sensitively. If they consistently do this, they will be on the right track to creating an anti-harassment culture.
Attempting to play down or brush a complaint under the carpet is never the right approach. It enables bad behaviour, toxifies culture and leaves an employer open to legal action down the line. But most importantly, it represents a business that is failing in its duty of care to its employees.
Naomi Greenwood is an Employment Law Partner at Moore Barlow.