Sexual harassment: the employer's duties to complainant and accused

Employers can and should take steps to prevent sexual harassment in the workplace such as training staff on what constitutes sexual harassment, having anti-harassment and equal opportunity policies and putting in place appropriate procedures for those in 'high risk' roles. They must act appropriately if sexual harassment complaints arise.

In recent weeks the Equality and Human Rights Commission has vowed to take legal action against leading organisations which fail to adequately investigate, identify and address sexual harassment claims.

Acas has updated its guidance for employers on how to identify and support people who face sexual harassment at work, click here. As well as encouraging employers to have sexual harassment policies in place to ensure any incidents are quickly resolved, it explains what action to take when historical allegations are reported.

Faced with such allegations, an employer must ensure it is sensitive and fair to the worker who has made the complaint, anybody who has witnessed it and anybody who is being accused of sexual harassment. Failure to respond appropriately could lead to any such employee claiming constructive dismissal and/or discrimination. Each case is fact sensitive and legal advice should be sought regarding appropriate steps but by way of general guidance, an employer should:

• take action when it receives a complaint but without making any kneejerk decisions or assumptions. For example, it should carefully consider whether suspension is appropriate in the circumstances
• act promptly. The employer should not unduly delay the process, during what is likely to be a highly stressful time for all those involved
• ensure that its own policies, including grievance, disciplinary and sexual harassment policies, are followed
• undertake a thorough investigation in relation to the allegations, particularly when investigating historical allegations, as it can be difficult to establish the facts and/or find witnesses to the alleged behaviour
• give neither the alleged complainant nor the accused priority but be mindful the two competing interests.

Whilst an employer should always ensure appropriate safeguarding measures are put in place for the complainant, it should continue to be mindful of the duties it has to the accused.