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How should employers manage a sexual harassment claim?

Emily Shoemark

22 Aug 2018

Topics

  • Employment Law

What happens when an employee reports sexual harassment in your workplace? How should your managers respond?

This is the third part of our series on sexual harassment. Emily Shoemark, Senior Associate with Snedden Hall & Gallop Lawyers, looks at how employers should deal with sexual harassment claims in the workplace.

In Part 2 we explored the importance of employers having clear proactive strategies to prevent sexual harassment from happening in the workplace. Taking these reasonable steps will make the process of dealing with sexual harassment claims much simpler, should they arise. In Part 1 we looked at the prevalence of sexual harassment in the workplace in Australia, particularly following the allegations made against Harvey Weinstein.

Research suggests that it is rare for a victim to speak out about sexual harassment in the workplace. Statistics show that the majority of victims (usually women) stay quiet. In fact, 4 out of 5 people won’t report the matter. So it is essential that employers take a sexual harassment complaint seriously. Sexual harassment policies and procedures should include a clear and transparent process that sets out how an employee can make a sexual harassment complaint, and how the employer will deal with the complaint.

Complaints process

Sexual harassment policies need to include a clear process for making complaints, and must be communicated to, and easily accessible by, all employees.

Sexual harassment policies and procedures may look different from employer to employer depending on the size of the organisation, the type of work done, geographic location and the resources available. All complaints processes should identify:

  • How an employee can make a complaint, with different options so that each individual employee is comfortable with the procedure.
  • Who the complaint can be made to. If possible, multiple people of different genders should be available to receive complaints. Managers nominated to receive complaints must be well trained and well equipped to appropriately listen to and receive a complaint; identify if the employee requires external help; and manage the organisational process once they receive a complaint.
  • What can, or may, happen, once the complaint is made, including estimated timeframes. The options about next steps will depend on the nature of the complaint and the wishes of the complainant.

Don’t forget your humanity

In reality, a complainant may confide in a senior manager that they are most comfortable speaking to. They may or may not want their matter escalated to the official complaints system, requesting an informal process instead. And they may not want their name included in a complaint, craving anonymity and protection instead. Your organisation’s policy will need to take into account that sensitivity and compassion are required at every step of the process when dealing with this complex and highly personal topic. This makes the choice of your responsible manager important and training essential.

Investigation process

Once an employer receives a complaint, the first step for them is to consider whether an investigation is appropriate. Factors influencing this decision include:

  • Length of time since the alleged events took place: the longer the period of time, the more difficult it becomes to conduct a proper investigation. This is largely because the alleged harasser and other witnesses may have since left the organisation, and, especially in the case of key witnesses (if any), where their recollection of the events may falter.
  • Seriousness of investigations: the more serious the allegation, the more likely it is that a formal investigation is required.
  • Who the allegation is against: the more senior the person, the more likely an investigation is appropriate.
  • Complainant’s objectives: if the complainant wants the harassment to be acknowledged, rather than any outcome of resolution, a formal investigation may not be required .

 

If an employer determines that an investigation is required, they must then consider who should investigate the allegation. Depending on the nature of the complain, an external investigator is often more appropriate because of their impartiality. If an organisation has a poor track record of sexual harassment claims, or if the allegation is against senior members of management, then employers should seriously consider an external and independent investigator.

Sexual harassment policies which include a sound complaint and investigation process:

  • are transparent and clearly articulated to all employees
  • have different methods for reporting complaints, both formal and informal
  • identify different persons designated to deal with complaints, especially for different genders
  • identify external support networks for individuals affected
  • set out clear appeal mechanisms.

Red flags – when things must change

If your complaints and investigation process does not embody sound and relevant processes, you should consider reviewing your policy. If you workplace sexual harassment procedures lack transparency and neutrality, complaints may go unreported and unresolved, which may lead to a workplace culture of complicity in sexual harassment.

How can Snedden Hall & Gallop Lawyers help you?

We can assist you with the preparation of up-to-date complaints and investigation policies for sexual harassment in the workplace.  Ask us to review your complaints and investigation procedures or advise you on preparing a procedure. We can also run a formal or informal investigation as an independent workplace investigator. Contact Snedden Hall & Gallop today on (02) 6285 8000 or by email here.  You can find out more about our Employment team.


Emily thanks Senior Law Clerk, Gene Schirripa, for his contribution to this blog.

Further reading: The Weinstein effect and sexual harassment in the Australian workplace and Preventing sexual harassment in the workplace