A cultural shift appears to be underway in the public perception of sexual harassment and misconduct and the treatment of those making accusations. The exposure of allegations against prominent media figures, such as Harvey Weinstein and Bill Cosby, has definitely played a part in this.
We now see this extending into the employment context: a number of our clients have received allegations of sexual harassment from former employees, who perhaps only feel able to come forward because of the public momentum behind campaigns to expose perpetrators and support accusers.
Adapting to the new climate and dealing with allegations from the past represent major challenges for employers, requiring them to re-think the preventative and reactive measures they take and the way they seek to protect the organisation as a whole.
We advise employers on the steps they should take to prevent harassment and on reacting appropriately to current and historic allegations.
Responding to allegations
Historic allegations, including those made by or against former employees give rise to difficult issues, for example:
- how should the organisation react in practice?
- does the organisation have a duty to investigate? Or to support the accuser?
- what are the legal rules around confidentiality and publicity?
- should historic documents be disclosed?
- is potentially criminal conduct involved?
Enhancing prevention and protection
It is perhaps no longer enough just to rely on having an anti-harassment policy by way of protection. In addition, “minimalist” policies that simply proclaim zero-tolerance of harassment may be seen as simplistic or unconvincing.
A more subtle and expansive approach will often be required, for example:
- regular training for employees;
- Board or management team briefings;
- dealing with bad behaviour by employees before problems escalate;
- upskilling HR to respond to allegations; and
- providing a third party support channel for affected employees.
These are just some of the steps that organisations should consider.
What we do
We help clients with preventative and reactive measures, including:
- improving existing policies;
- developing action plans for dealing with historic and current allegations;
- delivering briefings for management teams on high-level legal and risk issues;
- advising and training HR professionals on the law relating to investigations e.g. confidentiality and disclosure; and
- delivering training for employees on what constitutes harassment.