Euan Bruce: Serious claims mean making the hard decisions

For employers, any allegation of harassment in the workplace risks a significant potential liability for the business and impact on reputation. However, headaches begin well before things get as far as an employment tribunal, with a difficult investigation and grievance/disciplinary process to be navigated first.

Euan Bruce is a member of DLA Pipers Employment practice

With tensions running high and serious consequences for both the alleged perpetrator and complainer, managing the process is critical for all parties concerned. Outlined below is a guide for managers who are tasked with the unenviable job of investigating the matter to help ensure that the risk of any legal claim against the employer is minimised.

Stage 1 – Fact finding

Given the high stakes, no stone should be left unturned to try to establish what has occurred. However, there must be recognition by the manager that this might not be entirely clear and one person’s word against another. Determining who to believe and explaining the reasons for doing so will form an important part of the ultimate decision.

2 – Step Back

It is vital for the manager to take stock and consider whether what has been alleged actually amounts to harassment. People often use the word “harassed” to describe being put under pressure by managers or being criticised. To amount to unlawful harassment, the complainer must be able to show the alleged misconduct relates to one of the eight “protected characteristics”.

This is not always straightforward. A good example is the case involving former Scottish Labour leader Kezia Dugdale, when she accused a blogger of being homophobic after he commented that “Oliver Mundell is the sort of public speaker that makes you wish his dad had embraced his homosexuality sooner.” Such comments may be objectionable (and in the employment sphere may merit disciplinary action nonetheless), but the mere mention of a protected characteristic does not make it harassment.

3 – Complainer’s Perspective

The legal test for harassment focuses on the effect of the conduct on the complainer. The investigating manager must try and put themselves in the shoes of the complainer and assess whether the conduct in question has either violated the complainer’s dignity or created an “intimidating, hostile, degrading, humiliating or offensive environment” (“prohibited effect”). This will require the manager to consider the actual impact of the alleged harassment, such as any change in the complainer’s demeanour, any absences and also the complainer’s own assessment of the impact on them. However, as the legal test is purely subjective, this should be treated as a fairly low threshold. Crucially, it does not matter if the perpetrator only intended it as a joke; any mention of “banter” should be treated with caution.

4 – Objective Assessment

After considering matters from the complainer’s perspective, the manager should once again take a step back and consider whether it was reasonable for the complainer to feel that the conduct had the prohibited effect. It is easy to blur stages 3 and 4 into a single assessment, but efforts must be made to avoid this. Only if the manager is comfortable that it was unreasonable for that specific complainer to feel that they have suffered the prohibited effect should the complaint be dismissed.

5 – Decision Making

Making the decision is the hardest part for the manager and it is going to upset at least one party:

Upholding the harassment allegations means that appropriate sanctions must be applied in accordance with any relevant policies in place (often stating a “zero-tolerance” approach to harassment); and

Rejecting the complaint may leave the complainer feeling let down by the investigation and the company. They may even resign and claim constructive dismissal.

In an attempt to appease everyone, there is a danger the manager deems the complaint “partially upheld”. Such outcomes generally have the opposite effect from what is intended.

Where such serious allegations are made, managers should be ready to make the hard decisions. It can often be difficult due to the lack of clear evidence but, in such circumstances, the manager must give consideration to the credibility of witnesses and the evidence available before making a clear decision about what has occurred.

If the manager’s gut-instinct is in favour of one party, giving thought to why that is the case might help to establish clear reasoning for the decision.

Euan Bruce is a member of DLA Piper’s Employment practice