Dealing with sexual allegations in the workplace
Kirsty Churm and Lucy Williams, July 24, 2018
An incorrectly-conducted investigation may fatally infect evidence
The Solicitors Regulation Authority (the body that regulates solicitors in England and Wales) recently told Bloomberg that it has received more sexual misconduct and harassment complaints in the first half of fiscal year 2017-18 (19 complaints) than in the whole of 2016-17 (12 complaints), and that the complaints for both years are markedly higher than previous years.
Law firms are not the only organisations to have been 'clearing out their cupboards'. HR departments in all types of companies, across all industries, are being forced to revisit complaints that could perhaps have been better dealt with, as well as dealing with current situations where complainants are emboldened by the sociopolitical climate and are more prepared to call out inappropriate behaviour.
Complaints commonly include some or all of the following: allegations of sexual assault or harassment; allegations where a workplace relationship has gone awry and/or there is an imbalance of power or status; discrimination; and allegations involving consent – whether it was informed, understood or freely given.
Employers need to consider their legal obligations to all employees involved, both suspect(s) and complainant(s).
One lesson for HR managers across all such situations is the importance of making an early call about the nature of the allegation, the scope for an employer-only response, and the process that will be followed (considering the impact, if any, of external factors on the substance and timing of that process). It is essential to decide, for example, if the police will need to be involved if allegations are of a criminal nature or whether there may be an obligation to notify a regulator, like the SRA, either for an individual concerned or the employer organisation.
An incorrectly-conducted investigation may fatally infect evidence that could otherwise form the basis of an independent criminal investigation. Regulated organisations may find that their regulator critically appraises how they handled things, and this inevitably raises the stakes when investigations are being conducted.
These factors will influence not only how an investigation and potential disciplinary process is shaped and conducted, but also the extent to which complainants and suspects decide they can participate in a workplace investigation process.
For a suspected employee the decision as to whether to engage with an investigation or disciplinary process may involve competing considerations. These may include:
- Whether engagement will maximise prospects in terms of name-clearing and job preservation, or if it could potentially damage exit terms
- Whether any account of events, either given informally or during a formal HR process, may prove disadvantageous during a subsequent police investigation
- Whether a regulator would look at any account given in subsequent regulatory proceedings and in taking decisions about any sanction.
In addition HR departments need be cognisant that old ways of dealing with complaints are no longer valid. Until last year, for example, non-disclosure clauses in settlement agreements were considered normal practice. Nowadays blanket confidentiality clauses and clawback/forfeiture clauses requiring settlement monies to be repaid in certain circumstances need to be considered much more carefully and may no longer be appropriate. The reputational question of whether to hush up an incident or tackle a problem head on has become much more complicated in the post #MeToo world.
In short there is no longer any single roadmap for dealing with sexual misconduct allegations in the workplace – they involve tricky judgment calls and require even more careful handling than ever. A single allegation may give rise to interwoven questions about the future of the employment relationship, criminal liability, regulatory responsibilities, and reputation management. HR teams need multifaceted advice before they embark upon a process and arrive at outcomes. Otherwise decisions made in haste, often in very pressured circumstances, could come back to haunt them.
Kirsty Churm is a senior associate in the employment team and Lucy Williams is a senior associate in the regulatory team at Kingsley Napley