Investigating claims of sexual harassment in the workplace and your duty to protect employees

August 23, 2023

A guide to creating a robust process by Catherine Hawkes, Senior Associate at RWK Goodman, a UK Top 100 law firm.

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

Impartiality is key to ensuring that the investigation is fair and unbiased. This not only protects the rights of all involved but ensures the process is trustworthy and credible. Sexual harassment complaints are often very sensitive and complex. The investigator should be specifically trained in dealing with sexual harassment cases and free from any conflict of interest. If there is no one suitable within an organisation, it may be necessary to consider appointing an external investigator with experience handling such investigations.

2. Preserve confidentiality

Confidentiality protects the privacy of both the complainant and the accused, mitigating potential harm or prejudice during the investigation process. It is therefore important to maintain the confidentiality of all parties throughout the investigatory process. Restrict the number of people involved in the investigation and remind all parties of the importance of discretion. This means that employees should not speak to other witnesses about the investigation. Further, that any breach of confidentiality will be a disciplinary offence. Once the complaint process has concluded, it is recommended that the outcome of the formal complaint is transparent which will help encourage those with complaints to come forward.

3. Establish clear investigation procedures

Having a standardised procedure ensures consistency, fairness, and that no essential steps are overlooked. Create a detailed investigation plan outlining the steps, timeline and parties involved. This will help ensure a consistent and well-documented investigation, whilst giving confidence to the complainant that it is being taken seriously. The investigator should identify the facts they will need to establish, the questions needing to be asked and evidence they should seek to obtain. Regular updates on progress should be provided to the complainant along with clear explanations.

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 Government is supporting a new Private Members’ Bill; Worker Protection (Amendment of Equality Act 2010) Bill 2022-23. The Bill is currently at the Report Stage in the House of Lords. If it passes through to royal assent, the bill will come into force one year later. The Bill will insert a new section 40A into the Equality Act 2010 introducing a mandatory duty on employers to prevent sexual harassment of their employees.

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 Hawkes

Catherine is a Senior Associate in RWK Goodman's Employment & HR team.

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.

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