In today’s evolving workplace, addressing, and investigating claims of sexual harassment in the workplace promptly and appropriately is not only a legal requirement but is crucial to maintaining a safe, inclusive, and productive work environment.
Under UK employment law, the onus is increasingly on businesses to demonstrate not only compliance but proactive engagement in tackling such issues. When a claim of sexual harassment is made, ensuring a thorough and unbiased investigation is carried out is paramount. A fair investigation can play an important role in resolving a sexual harassment complaint and removing the need for protracted litigation.
In order to ensure a fair investigation is carried out, the following points should be considered:
1. Appoint an impartial investigator
2. Preserve confidentiality
3. Establish clear investigation procedures
4. Interview all relevant parties and gather evidence
It is necessary that you meet with the relevant parties separately, including the complainant, alleged harasser, and any witnesses. The complainant and the alleged harasser should be informed of their statutory right to be accompanied to formal grievance hearings by a trade union representative or a colleague. Given the sensitive nature of the complaint, it may be appropriate for parties to be accompanied by a friend or family member to provide support as it would be unreasonable to expect an employee to recount explicit details of the harassment in front of a colleague.
It is equally important to ensure that all interviews are conducted with the necessary sensitivity. If when reviewing the evidence you find information gaps, you may need to re-interview the parties with additional questions if you think there is more to discover.
You will also need to collect relevant documents, emails, text messages or WhatsApp’s that may support or refute the claim as well as the witness statements. Detailed notes should therefore be taken, ensuring you collect consistent information.
5. Review and learn
Every investigation provides an opportunity for growth, highlighting areas where an organisation can improve its policies or training to prevent future incidents.
Once the investigation concludes, review the process to identify any challenges or gaps that arose. Use this feedback to refine your procedures and consider introducing training sessions or awareness campaigns to educate employees about acceptable behaviour and the importance of a harassment-free workplace.
The Worker Protection (Amendment of Equality Act 2010) Bill
The Bill in its current form means that employers will be required to take all reasonable steps to prevent harassment of employees in their course of employment, with the Equality and Human Rights Committee (EHRC) being able to enforce the new duty. Further, employment tribunals will have the power to award an uplift to an employee’s compensation if there has been a breach of the duty.
Employers continue to be “vicariously liable” for discrimination, harassment or victimisation committed by an employee during employment; anything done by an employee can be treated as having been done by the employer. The only defence available to an employer is by showing they have taken all reasonable steps to prevent the discrimination/harassment. The steps must have been taken before the act of sexual harassment, acting reasonably in response to a complaint will not be sufficient in demonstrating reasonable steps have been taken.
Examples of reasonable steps that have been considered appropriate include but are not limited to; creating and correctly implementing a “dignity at work” policy or a policy to that effect, making employees aware of the policies and their implications and providing adequate training to all staff.
Dealing with allegations of sexual harassment in the workplace is complex and the experience will often be upsetting and stressful for all involved. Difficult decisions will need to be made including how to manage the parties if they must continue to work together.
As an employer, it is important to ensure that investigations are not merely procedural formalities. Undertaking a thorough investigation with transparent processes and explanations for the conclusion will not only protect the complainant, but will also mitigate the risk of tribunal claims, reduce the likelihood of further instances of harassment and will preserve the organisation’s reputational integrity.
Catherine is an experienced employment lawyer, advising both organisations and senior executives on complex employment issues. Catherine frequently advises on sexual harassment investigations; discrimination as well as employee competition issues, including protecting confidential information and advising on post termination restraints.
About Fram Search
Established in 2010, Fram Search is a specialist financial services recruitment consultancy. We focus on mid-to-senior hires in the UK and internationally.
We provide high quality contingent and retained recruitment services to boutiques and global brands. We have long established relationships, outstanding market knowledge, and access to deep talent pools. Fram takes a highly consultative approach, combining outstanding tech with a human approach. We are proud that our contingent fill rate is nearly three the industry average and we augment our retained search methodology with rigorous psychometric testing. We take ESG seriously, we are champions of diversity and all staff have undertaken unconscious bias training, we also carbon offset.
Please contact us on 01525 864 372 / [email protected] to learn more.
Share this Post