New employer duty: key takeaways for workplace sexual harassment investigations

Insight

26.11.2024

The law

On 26 October 2024, a new duty for employers to take reasonable steps to prevent sexual harassment of workers came into force. Employers in breach of this new duty risk Employment Tribunals increasing compensation awards by up to 25%.

The law does not list specific steps an employer must take, but it is clear that how an organisation handles workplace complaints (including workplace investigations) will be a factor in determining whether the duty has been complied with.

EHRC’s "Sexual harassment and harassment at work: technical guidance"

There is no one-size-fits-all way of complying with this new duty. However, the Equality and Human Rights Commission (EHRC) has published a new version of its lengthy technical guidance on sexual harassment and harassment at work to assist employers with navigating this new duty. The EHRC has also published an "Employer 8-step guide: Preventing sexual harassment at work", which is based on the technical guidance and is significantly shorter and more digestible. See our blog on the guidance here.

The Employer 8-step guide relates to all aspects of preventing sexual harassment at work, from policies to monitoring, and step 6 specifically deals with "what to do when a harassment complaint is made", which of course will be relevant to carrying out investigations. The highlights for investigations are:

"Act immediately to resolve the complaint, taking into account how the worker wants it to be resolved"

It is important to take prompt action once a complaint is received. However, it is also important for organisations to avoid rushing into an investigation that has not been properly thought through. Remember that “prompt action” can include taking the time to set up a robust and credible investigation with an impartial and sufficiently senior investigator with clear terms of reference. Preparation and thought will pay dividends in the long run.

"Respect the confidentiality of all parties"

Organisations should instruct all those involved in the investigation to maintain the confidentiality of the process. This will reassure reporters that they can and should raise concerns and it will protect the reporters and those accused, particularly while the facts of what actually happened are not yet clear. That said, organisations should avoid making blanket assurances of confidentiality and in particular promising anonymity.

Anonymous complaints are of course different to confidential complaints. Anonymous complaints are difficult to investigate and for an investigation to be fair, the accused will need to understand the case against them, which will likely mean identifying the reporter (although not in all circumstances). Read more about managing anonymity in workplace investigations here.

"Protect the complainant from ongoing harassment or being victimised during an investigation or complaint. For example, move the alleged harasser to another team or site. You should also protect witnesses to the sexual harassment"

You should also consider how you protect the reporter and the integrity of the investigation (for instance if there are concerns about witnesses being influenced). The guidance suggests moving the accused to another team or site. Another option is to consider whether suspension of the accused (on full pay) might be justified. As set out in the Acas Code of Practice on disciplinary and grievance procedures (which would apply to sexual harassment investigations), in cases where a period of suspension with pay is considered necessary, this period should be as brief as possible and kept under regular review.

One point which the EHRC guidance does not focus on but which we think is important is the impact on – and support for – the person accused, to whom you also owe a duty of care.

"If a worker makes a complaint of harassment that may be a criminal offence, you should speak to the individual about whether they want to report the matter to the police and support them with this if they go ahead"

If the matter becomes a police matter, you will need to support the reporter (and possibly the accused) but you may also be expected to prioritise the police’s investigation, if launched. This may mean pausing your own internal investigation so as not to prejudice the police’s investigation. Communication with the police is critical in these circumstances, so organisations should ensure that they have an open channel of communication with the police from the outset. Identifying the officer dealing with the case and regularly checking in with them is advisable.

"Only use confidentiality agreements (also known as confidentiality clauses, non-disclosure agreements, NDAs, or gagging clauses) where it is lawful, necessary and appropriate to do so"

NDAs and the misuse of NDAs has been a hot topic for some time, kickstarted by the #MeToo movement. Organisations need to be very careful about using NDAs in the context of sexual harassment complaints and if they are used, it is important that clear exceptions are ‘carved out’ where the individual is permitted to disclose information in certain circumstances. NDA’s should now allow reporting in the following circumstances as a minimum:

co-operating with a criminal investigation or prosecution;
reporting an offence to a law enforcement agency;
making a report to a regulatory body responsible for supervising or regulating the matters in question; and
making a protected disclosure under the Public Interest Disclosure Act 1998 and disclosure about the agreement or circumstances surrounding the agreement to professional advisers, such as legal or tax advisors and/or medical professionals and counsellors, who are bound by a duty of confidentiality.

"Always communicate the outcome of the complaint and outline any appeals process to the complainant in a timely manner"

It is important to communicate with the reporter at the conclusion of the process. It is also a good idea to keep the reporter updated throughout the investigation process (where appropriate and practicable). This will encourage trust in the process and may lessen the likelihood of an appeal being made.

Future changes to the law

Finally, it is worth noting that Labour’s recent Employment Rights Bill (ER Bill) looks to extend the duty on employers to take all reasonable steps to prevent sexual harassment of workers, which would (if made law) set the compliance bar even higher. The ER Bill also introduces liability for third party harassment on employers (all types of harassment; not just sexual harassment) if the employer did not take all reasonable steps to prevent this. Although the ER Bill is not yet law, the direction of travel is clear: the Government is prioritising tackling harassment and particularly sexual harassment at work. Employers need to take heed and make appropriate changes including looking at their workplace investigations practices.

This publication is a general summary of the law as at the date of publication. It should not replace legal advice tailored to your specific circumstances.