On Thursday 05 October 2017, a story broke in the New York Times that alleged Harvey Weinstein had been sexually harassing women for decades; this case sparked a reaction unlike any before. Social media allows campaigns such as the #metoo movement to spread news and awareness; this linked with increased ways of reporting has resulted in countless others in entertainment, politics and beyond being accused.
How does this affect employers?
Many of these incidents have occurred in a workplace context, where employers have a duty of responsibility for their employees, both for the accuser and the accused. It seems likely that if this scandal continues to spread, more revelations will come to light, some of which may have taken place in the workplace. Firms will need to balance protecting the accused and the accuser. As highlighted below, this can be particularly challenging where anonymous allegations are made.
In addition to the possible legal claims that employees may bring should they be subject to sexual harassment in the workplace, given the intense focus on this area at the moment, employers who are perceived to not be responding appropriately may find themselves subject to a social media campaign. To avoid this, employers should consider being pro-active in identifying key issues and tackling them.
Organisations can be pro-active in this area by:
- reviewing past cases
- checking their current policies and considering whether employees have sufficient knowledge of these (and, if not, considering the best way to communicate these to employees), and
- considering whether their existing channels for complaints are adequate.
In relation to channels of complaints, we are aware of one organisation which set up a hotline in response to the heightened media attention; they found a 150x increase in the amount of reports of sexual harassment after the hotline was made available, which suggests that employees may not have felt that previous channels were available to them. Employers may want to consider, in light of this, whether there might be alternative channels under which employees might feel more comfortable raising concerns.
In addition to the points highlighted above, employers may also want to consider whether it is appropriate to undertake training of staff on this difficult issue, particularly to encourage consideration of what constitutes sexual harassment. Graphs in The Economist highlight that what is considered appropriate male behaviour differs significantly depending on age, sex and nationality. Those accused may not even believe they have done anything wrong. This can be alleviated by training, ensuring that employees know what is appropriate and what is not.
Dealing with anonymous complaints
Some complainants may wish to remain anonymous to avoid any retaliation. This raises a myriad of issues for employers. The Employment Appeal Tribunal (EAT) has held when receiving an anonymous report of sexual harassment, the extent to which action must be taken will depend upon its own facts, and circumstances may vary widely. So any response should take in consideration the individual facts and the severity of the accusations. The cases suggest that employers are expected to look at the merits of the circumstantial evidence and consider if there is any reason for them to be fabricated, as well as this they must ensure that everything is recorded in writing.
Where an anonymous complaint is received, the employer should consider what steps are required, if any, to investigate the allegations. As a practical pointer, where the allegations are submitted by email, the organisation may wish to try to instigate further contact to both state its commitment to investigating the type of complaint raised and note its policy in regards to sexual harassment and retaliation, but also potentially to seek any further information that is needed in order to investigate the allegations.
Where allegations are vague or unspecific, employers may still wish to carry out some investigation in order to demonstrate their commitment to these issues. By way of example, if there is a complaint about a particular desk or department, considering attrition rates, exit interview data and feedback may provide some insight into the team dynamic and whether there are potentially any issues. Further steps may be appropriate (including review of email correspondence and computer data), depending on the circumstances, but the interests of the complainant and the accused need to be carefully balanced and there should be careful thought given to the level of investigation that is appropriate.
Complaints in confidence
In some cases the complainant may not wish to be anonymous but may wish to share a complaint in confidence. This is also difficult, but the firm should remind the complainant that the firm has a no retaliation policy, and if they feel as though they have been retaliated against they should report it immediately. For some cases it may be that information will have to be shared, as a result the firm should discuss this with the complainant and they need to be assured that discretion will be a priority. However, HR professionals, in particular should be mindful of not promising confidentiality in respect of these complaints given that often, in order for an employer to take appropriate action, the identity of the complainant will become known. Anyone that the complaint is shared with should also be educated about the retaliation policy and need for confidentiality.
One last concern for employers is the status of these accusations as whistleblowing complaints. In order for an allegation to be considered whistleblowing they will need to show that they made a protected disclosure in the public interest. Since most sexual harassment allegations will be considered unlawful actions which will likely affect more than one person it seems clear that these will meet this threshold assuming they have a reasonable belief in the protected disclosure.
A final thought - non disclosure clauses?
In many of the cases that have already come to light, the alleged victim of the harassment has been required to agree not to disclose details of the allegations. Such a clause is often standard in settlement agreements. Employers may wish to consider whether, in certain cases, those clauses should be included. However, they should only be removed after careful thought and it is recommended that employers seek advice before doing so.
Written by Luke Norton, Paralegal at Simmons & Simmons LLP
This document (and any information accessed through links in this document) is provided for information purposes only and does not constitute legal advice. Professional legal advice should be obtained before taking or refraining from any action as a result of the contents of this document.