In this article, we consider how businesses can deal with sexual harassment allegations when faced with one person’s word against another’s. We’ll also look at the implications of vicarious liability, as issues giving rise to it can be more prevalent at this time of year, when alcohol is flowing.
Most people will be looking forward to that one night of the year when they can really let their hair down with their work colleagues; the Christmas party. The Christmas period is also a time when informal gatherings of work colleagues may be taking place. However, if you are a HR professional then you might be approaching the next few months with trepidation.
What to do if an allegation of sexual harassment is made?
#metoo - it is no longer acceptable for a complaint of sexual harassment to be brushed under the carpet (if it ever was). A badly handled allegation can cause huge reputational damage for an organisation, not to mention the human cost. So, you are faced with an allegation of sexual harassment; how do you approach this often complicated situation? If there are witnesses to the incident and the evidence is pretty clear, it might be easy to resolve. But let’s face it, how often are things that easy? What if it’s one person’s word against another’s? The recollections of other witnesses might not be reliable (if they can remember at all).
As part of any investigation (disciplinary or grievance), we suggest considering the following:
- Is there any corroborating evidence? Was a report made to the police? Did the complainant tell a friend immediately after the event or put anything on social media? If a serious assault is alleged, did they go to a doctor?
- If there is a lack of detail in the complainant’s recollection, consider that victims of sexual assault may not always remember all the details. Do you have sufficient information to understand the allegation and put it to the accused?
- Avoid (perceived or real) gender bias by having a male and female investigator.
- Don’t rely on rumour about the reputation of either party. Consider only the facts. Hearsay evidence can be used but it shouldn’t be given the same weight as first hand evidence.
- There is no obligation to believe or, conversely, to be sceptical. An investigation must be balanced and, above all, reasonable. Be mindful of your obligations to both employees (victim and accused).
The following principles from recent case law should also be borne in mind:
- Where allegations against an employee are serious enough to impact on their reputation or future employment prospects, the investigation must be especially thorough.
- If you are to dismiss, you will need to test the evidence of the accuser as far as you reasonably can in the circumstances.
- It is perfectly proper for an employer to find that, whilst not disbelieving the complainant, it has found the case “not proven.” The benefit of the doubt is then given to the accused. That might be particularly appropriate where the accused has lengthy unblemished service.
Whether or not an allegation is upheld, organisations sometimes consider offering an accuser a settlement agreement; to protect the reputation of the employer, a non-disclosure agreement (NDA) is often insisted upon.
Some MPs have advocated for NDAs to be made unlawful. It is hard to see any future law going much further than ensuring victims of alleged criminal offences are able to go to the police. If such changes are brought in, a non-disclosure clause may not adequately protect against reputational damage.
Organisations can protect against claims by trying to put themselves in a position where they can rely on the statutory defence to discrimination claims; that is that the employer took all reasonable steps to prevent discrimination. This would include having an equal opportunities policy (and communicating that to employees) and educating and training employees and managers on their responsibilities.
With that in mind, it is important to remind staff of their obligations and applicable policies in advance of any work events.
Finally, in the post #metoo environment, it is best practice to create a culture where people feel safe to come forward with complaints and to deal with complaints fully and properly.
Fighting and vicarious liability?
In cases where employees fight, you will have to deal with the accused in the employment context. But there may be wider ramifications in that the organisation could be vicariously liable for any loss or damage caused by your employees’ actions.
The test for vicarious liability is whether the wrongful act was “so closely connected with employment that it would be fair and just to hold the employers vicariously liable.” In the recent case of Bellman v Northampton Recruitment Limited the Court of Appeal held that there was a sufficiently close connection between a Managing Director’s job and his drunken assault on an employee to render the company vicariously liable for his actions. This exposed the employer to substantial personal injury losses suffered by the victim.
Whilst the employer cannot avoid a fight happening, it can take steps to distance itself from its employees’ unauthorised acts by planning events in the Christmas period carefully; in particular:
- Is alcohol to be provided by the company? If it is provided, how much? The more alcohol is involved, the more likely it is that an incident/assault of some kind will occur and the greater the connection between the company and the incident/assault.
- It is preferable for managers to keep conversations to personal and social matters, rather than business topics. In Bellman, a significant factor was that, before carrying out the assault, the Managing Director had been “lecturing” employees on how he ran the company.
- How late into the night will the company continue its association with the party? If further transport and/or accommodation is provided, the greater the association between the company and late-night incidents, when judgment may be more impaired.
- Again, remind staff of their obligations.
When considering “he said / she said” allegations, think laterally and explore the surrounding circumstances to see if there is evidence supporting or undermining the allegation. It is important to deal with any disciplinary and grievance investigation as thoroughly as possible; bear in mind the adverse consequences of failing to follow the ACAS Code.
In the context of a violent incident, it is impossible to legislate in advance for every eventuality, but the above considerations may help reduce your risks if the worst happens.
On that note, may we take this opportunity to wish our HR colleagues a happy Christmas and a relaxing New Year – at least once the Christmas parties are out of the way!