Factsheet – Sexual Harassment Guidance for Employers

What is the legal definition of sexual harassment?

For a detailed definition of what constitutes sexual harassment, please visit our page on Sexual Harassment in the Workplace.

Recommendations for you as employers

You have a duty of care to protect staff from unlawful discrimination.

As part of the Equality and Human Rights Commission’s (EHRC) sexual harassment survey in 2018, they recommended sensible and important steps employers could take to ensure that their workplace is safe.

Recommendations from the Equality and Human Rights Commission (EHRC) include:

• Organisations to publish their Sexual Harassment / Equal Opportunities Policy and the steps being taken to implement and evaluate this on their website
• Ensure your policy explicitly addresses your obligations as an employer under the Equality Act 2010
• Share your Sexual Harassment / Equal Opportunities Policy with everyone including organisations supplying your company with staff and services
• Ensure all of your staff are aware of your organisation’s policy and how to report instances of sexual harassment

Tips for dealing with complaints of sexual harassment

• Initiate an immediate investigation. If necessary, you should suspend the alleged perpetrator on full pay in order to ensure a fair investigation
• You should take a full account from the complainant and make sure that all specific details such as dates and the detail of what happened are recorded
• With the agreement of the complainant, and the police, if relevant, you can show the alleged perpetrator the allegations. If the police want to interview first, you should advise the alleged perpetrator that there are allegations of a sexual nature and ask for their version of events
• A concurrent employment investigation is essential, regardless of whether the police are involved. The Crown Prosecution Service require evidence of the perpetrator’s guilt, which is ‘beyond reasonable doubt’, and cases are often dropped. The civil test is only on the ‘balance of probabilities’ (51%) – more likely than not
• Where relevant, you should take witness statements from others to ensure that you have the full picture
• If the evidence is overwhelming, you should proceed to a disciplinary hearing, rather than expecting the complainant to go through a grievance first
• Ensure that only those who need to know are informed to preserve confidentiality
• The decision maker at the grievance or disciplinary meeting will need to consider all the evidence and should follow the Acas Code of Practice on Disciplinary and Grievances
• If a complaint is reported to police, or criminal court proceedings are being pursued, your organisation must still investigate the complaint as an employment matter
• You will need to follow your organisation’s disciplinary procedure, without awaiting the outcome of criminal proceedings, provided this can be done fairly

Regulatory top tips for sexual misconduct investigations

• You should consider whether the accused should be permitted to be accompanied at investigation by their lawyer given potential regulatory consequences
• Take notes on how the accused conducted themselves during the investigation and whether they failed to cooperate and whether they intentionally gave misleading / inaccurate answers to you
• Consider whether reporting obligations are triggered
• Update your regulator on the outcome and any disciplinary sanctions
• Consider whether any of this impacts on your company’s willingness to provide a reference
• Consider whether these findings impact on an individual’s fitness to practice and whether they have complied with their regulators codes of conduct

If you have received reports that members of staff have been sexually harassed or an employee has raised a grievance, please contact our Employment Law Team on 01273 609911, or email info@ms-solicitors.co.uk.