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Farrer & Co | One year from Weinstein: lessons from the workplace

A year ago, allegations of sexual misconduct against Hollywood film producer Harvey Weinstein first became public. The fallout from Weinstein, and the subsequent #MeToo movement, has put issues of sexual harassment in the workplace at the top of the agenda for many employers.

Since this time last year, I have advised six clients on handling allegations of sexual harassment. The allegations have often been against senior individuals. I have seen the full range of outcomes, from the perpetrator being dismissed, the alleged perpetrator resigning, the victim and perpetrator both continuing at the workplace and, in one circumstance, the alleged victim resigning after an independent investigation found no case to answer.

While each case has been different, there are some consistent elements; they are all emotionally charged; they tend to involve some kind of power imbalance; and they all take longer to resolve than anyone expects. Reflecting on my experiences during the past year and before (yes, people did raise allegations of sexual harassment before #MeToo), I’ve set out some key learnings I have noted for myself and for my clients:

  • Clarity – When an allegation is raised, it’s really important that all involved understand what is going to happen and why. Relevant managers and HR should know what procedures apply. Alleged victims and perpetrators should know what procedure is being followed and what is likely to happen at each stage. Decision makers should know what they are being asked to do and the scope of their role. In this area, advanced planning is crucial. Employers can put policies and procedures in place, and train managers and HR teams, before any issues are raised.
  • Early advice – Take legal advice early (I would say that, wouldn’t I?). I often spend a lot of time trying to undo the damage caused by early decisions or communications before advice has been taken. There are plenty of very important decisions that need to be made quickly after an allegation of sexual harassment is raised: What procedure should be followed? Who should know about the allegations? Should the alleged perpetrator be suspended? Should you contact the police? Do you need to contact a relevant regulator? What assurances can you give the alleged victim or other witnesses? All of these questions need careful consideration. Taking the wrong step can seriously damage the trust the alleged victim has in the employer or the ongoing relationship with the alleged perpetrator. In some instances, mistakes at the outset can prevent you from dealing fairly with the alleged conduct.
  • Open mind – It is crucial that decision makers and HR support keep an open mind. I usually advise that until a decision is reached following a thorough investigation, you should act as though the allegations are both completely true and completely false. Before sending a communication to the alleged perpetrator, ask yourself “how would this communication come across if the allegations are found to be false?”. Likewise for the alleged victim, “how might this email appear if the allegations are found to be true?”.  People will often have a gut instinct at the start as to whether the allegations are credible or not. In my experience, however, it is not uncommon for employers to be surprised by what is uncovered following a thorough investigation.
  • Care – Investigations into allegations of sexual harassment are enormously difficult for all involved. Alleged victims will feel exposed by raising an issue, particularly if it is against somebody more senior to them. Alleged perpetrators will be scared for their future and their reputation. Witnesses will be worried about the consequences of speaking up and the impact on their careers. If possible, all those involved should be offered support. If your workplace has an employee assistance programme, then ideally all involved should be reminded of the service and how it can be accessed. If you don’t have a programme in place, you might want to consider offering external counselling to the alleged victim and perpetrator.
  • Confidentiality – Be really careful about making assurances of confidentiality. Requests for confidentiality and/or anonymity are almost always raised. It is much more difficult to carry out a fair disciplinary process if the alleged perpetrator does not know the identity of the alleged victim; in some cases it can be the difference between a fair and unfair dismissal. It is far better to be open from the outset with the alleged victim and witnesses about who will see their evidence, why it needs to be shared and to reassure them that they should not be treated unfavourably as a result of providing information in good faith.
  • Communication – A fair process will almost certainly take longer than anyone initially expects; good and regular communication with all involved can help avoid a serious breakdown in the relationship before the process is finished. Alleged victims sometimes have unrealistic expectations; from their perspective, they sometimes don’t understand why an employer doesn’t just immediately dismiss and they often interpret delay as attempted cover up. There are almost always unexpected delays; key witnesses go on holiday, the alleged victim or perpetrator (or both) are signed off sick; new allegations are raised after the perpetrator has been interviewed. Employers can’t control everything that happens but you can control your communications, Keep updating the key individuals and if there’s going to be a delay, let them know early and explain why.

The above list is not meant to be exhaustive but reflects some of the more pertinent issues that have come up. Dealing with allegations of sexual harassment in the workplace will always be difficult and no process goes entirely to plan. A careful and fair process is still likely to attract criticism from both alleged victim and perpetrator because it is such a difficult process for both. Above all, employers should endeavour to keep a cool head, be empathetic and be fair to all involved.

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