Step 1: Follow a Fair Procedure
It’s important to investigate any complaint as quickly as you can while being thorough and remaining impartial. You must follow a procedure that is fair for both the complainant and the alleged
perpetrator, otherwise either party might resign and claim constructive dismissal. The complainant might also bring a victimisation claim if you fail to investigate properly, while the alleged perpetrator might claim unfair dismissal if you take too heavy-handed an approach.
Ask the complainant how they want you to deal with the issue, as they may be happy with an informal process. Indeed, making an example out of someone for a minor misdemeanour may be
counterproductive and stop other employees coming forward in future. Many victims want no more than an apology and for the behaviour to stop.
Step 2: Separate the Two Parties
Consider whether you can separate the employees during the investigation by transferring one of them into a different role of a similar status (making clear it’s not a punishment and is just temporary). Alternatively, you may have to suspend the alleged harasser on full pay in case they tamper with evidence or intimidate witnesses. However, this should be for as short a period
as possible to avoid breaching your duty of trust and confidence to the employee. You should also emphasise that the suspension doesn’t mean you think the employee is guilty.
Step 3: Offer Support and Discretion
Offer support not just to the accuser but to the alleged harasser who, of course, remains innocent until proven guilty. The apparent suicides of two Labour Party officials late last year after they were suspended over sexual misconduct and pornography claims highlights how badly things can go wrong when investigating such cases.
Similarly, it’s important to maintain both parties’ confidentiality, so you should urge everyone involved, including witnesses, not to discuss the matter with anyone and warn them that a breach of confidentiality could be a disciplinary issue. If the allegations are not upheld or are not serious enough to warrant dismissal, the two parties will have to continue working together, so you need to avoid their colleagues publicly taking sides or spreading rumours.
In the case of alleged sexual assault, you may need to offer to help the victim lodge a complaint with the police.
Step 4: Reach Your Decision
In sexual harassment cases, it’s often one person’s word against another’s. You’ll need to weigh up whatever evidence is available, including any witness statements, and decide whether, on the balance of probabilities, the harassment has occurred. If you decide it has and it amounts to gross misconduct, you’ll be in a position to dismiss the perpetrator with immediate effect.
If you decide a lesser sanction is appropriate or you cannot conclude that harassment occurred, you may need to consider transfers, mediation, training or counselling to enable both parties to
continue working for you.