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When faced with a claim of sexual harassment in the workplace or other cases of discrimination, employers and managers must follow robust procedures and ensure employees feel comfortable raising complaints.

From October 2024, there is a requirement to take ‘reasonable steps to prevent’ sexual harassment, so it is important to ensure at a cultural level you have zero tolerance to any sexual harassment. Please read our recent blog for guidance on steps to take to avoid harassment in the workplace.

Key steps an employer must take when faced with a sexual harassment in the workplace complaint

We have outlined the key steps an employer must take when faced with a sexual harassment in the workplace complaint, as well as some key preventative measures that should be put in place, and tips to ensure a fair process for all involved.

Risk assessment

Employers should assess their organisation for key risk areas and decide how to mitigate these risks. We suggest undertaking an assessment, documenting it and reviewing it periodically to check that it remains up to date. If a complaint comes in then this is a good time to review the risk assessment.

Policies and ongoing training

An employer should have an Equality and Diversity Policy in place which sets out clearly that sexual harassment as well as other forms of discrimination is not permitted within the organisation and the steps that will be taken if it does happen. This must be clearly communicated to staff.

It’s also important that HR managers ensure that employees are regularly given training on equality and diversity and best practice and ensure that employees are kept up to date with any developments in this area.

What should happen when an employee makes a sexual harassment in the workplace complaint?

Even before any investigation begins, if someone raises a concern about sexual harassment it should be taken seriously, even in cases where the person has waited a long time to raise the concern; there may be good reasons for the delay. This is important in ensuring the business creates a culture in which employees feel comfortable reporting such issues.

If a claim is historical, this will be part of the investigation. It could potentially affect the witnesses or evidence that is available but a fair investigation should still take place.

Employers need to be careful about making comments which could discourage the person from pursuing the complaint or make them think it is not serious enough. For example, comments such as “it could take a long time to look into”, “are you sure you want us to take this further” and “it seems quite a small issue” are unacceptable.

Investigating sexual harassment complaints

When an employee raises a compliant or concern about sexual harassment in the workplace, the employer should start the investigation as soon as possible and depending on the circumstances, consider whether the employee needs any pastoral support.

Depending on how the issue is raised, it might be appropriate to carry out the investigation as a grievance first. Alternatively, a business may consider it is possible to move straight to a disciplinary investigation and process.

As a minimum, any process should meet the requirements of the ACAS Code of Practice and any internal policy governing sexual harassment.

Supporting employees

As part of any investigation an employer should be sensitive to any requests from the affected employee to remain anonymous but usually this is difficult to do if it is going to be investigated properly.

Any sexual harassment complaints should be handled as quickly as possible. Depending on what has happened, employers may also want to consider whether the person wishes to take a period of leave to process what has happened.

It can also be stressful and distressing for the person accused of sexual harassment. Until it has been investigated a business has no way of knowing if the allegations are true or not and therefore it’s important to also consider the way the individual who has been accused is treated. Organisations should consider offering them access to the same type of pastoral support and ensure that there is not a presumption that the person is guilty before the process has concluded.

Following a fair process

Employers should not let their own views influence a situation. It is judged from the shoes of the person experiencing the sexual harassment and just because someone else would not see the behaviour as a problem does not mean that the person raising the complaint is wrong to do so.

It’s important to ensure that anyone involved in the investigation process can be impartial. Employers should avoid appointing an investigator who has close connections to either the person complaining of sexual harassment or the person who has been accused of sexual harassment.

Careful notes should be taken at all stages of any investigation process. This information should of course remain confidential.

Employers should also ensure that only those people involved in the process are made aware of it. Any witnesses interviewed as part of the investigation should be told to keep the information confidential and this should be confirmed in writing to them.

Concluding the investigation

At the end of an investigation an employer should always consider if any general lessons can be learnt from what has happened. It may be appropriate as an outcome of the process to suggest mediation between the parties, introduce a code of conduct for the business, update any equality and diversity policies or offer training to staff.

If a working relationship has broken down as a result of the sexual harassment or the allegations it might also be appropriate to consider whether there needs to be any changes to job roles or arrangements to help both parties move forward.

If business wide issues are identified it is important to act upon them and show that the business is taking it seriously and will not allow sexual harassment to take place.

For further help with how to manage sexual harassment in the workplace or other discrimination claims in your business, you can find out more by visiting our website page ” Discrimination” and speak to one our team.

We publish blogs and social media posts to give a general overview of legal and commercial issues, relevant at the time of publication, which we hope you will find interesting. Please note that legal rules often change depending on the specific facts of a situation. The law also changes over time following changes in legislation or new court cases. We do not actively update our blogs or posts once they are published to reflect changes in the law.

As such, our blogs and posts are not intended to advise you on the law and must not be relied upon as legal advice. If you require advice on a particular issue then please contact us and we will be pleased to help.