Sexual harassment: the rise of historical allegations

With the reports of historical sexual harassment in Hollywood and now Parliament, employees may feel increasingly able to come forward with such claims in the workplace. Will Clift, solicitor at Winckworth Sherwood, looks at how HR should handle them and the legal grounds for allegations of historical sexual harassment.

With more than 60 women now accusing Hollywood mogul Harvey Weinstein of sexual harassment and the growth of the #MeToo hashtag, historical sexual harassment allegations present a number of challenges that need to be carefully considered by an employer.

Which HR processes should be followed?

The employer should deal with any complaint of historical sexual harassment in accordance with its anti-harassment and bullying policy. If no such policy exists, its grievance procedure should be followed instead. The allegation may also need to be treated as a disciplinary issue, in respect of the accused.

The first step will therefore be to initiate the relevant procedures set out in the employer's policies or staff handbook or, in their absence, the Acas Code on Disciplinary and Grievance Procedures.

Normally, the first stage will be to fully investigate the allegations, which will include meeting with the alleged victim and perpetrator. Depending on the outcome of these investigations, the employer may then need to invite the alleged harasser to a disciplinary hearing, after which it can decide whether to impose a disciplinary sanction.

Once a disciplinary decision has been made and communicated to the alleged harasser, the employer can determine the employee's grievance. It should then write to the employee to communicate its findings.

If the grievance has been upheld, the letter should set out what disciplinary action the employer has taken against the perpetrator (if appropriate), the steps it intends to take in order to try and protect the employee in question, such as ensuring that the victim and perpetrator do not work together going forwards, and details of any ongoing support that will be provided.

Evidence of historical sexual harassment?

As the events in question may have taken place months or years prior to the allegations being made, there may be a dearth of evidence for the employer to consider. Witnesses may have left the employer and emails or CCTV footage may have been lost or deleted.

It would therefore be advisable for the employer to make reasonable efforts to try and obtain as much evidence as it can. This may include, for example, asking former employees if they are prepared to be interviewed.

Employers should remember that, in order to avoid a successful claim for unfair dismissal, any decision to dismiss the alleged perpetrator will need to be "reasonable in all the circumstances".

Therefore they should carefully consider whether dismissal would be appropriate in the absence of any corroborating evidence.

What support should be offered to the employee?

In addition to implementing measures to protect the employee in future, the employer should highlight any support services that are available. For example, some employers give staff access to a confidential helpline, perhaps as part of an employee assistance programme, staffed by independent advisers with access to specialist counsellors. Such helplines provide help with physical, mental and social issues.

There is of course a risk that the alleged victim will bring a claim for sexual harassment against the employer under the Equality Act 2010. If the employee can convince an employment tribunal that he or she was sexually harassed, then it is likely to be ordered to pay the employee compensation in respect of any financial losses caused by the act of harassment, as well as an award for "injury to feelings".

Having said that, if the employer can demonstrate that it took all reasonable steps to prevent the act of harassment from taking place, then it may avoid liability. Such steps, which must take place before the act of harassment, will usually include having appropriate policies in place, such as an anti-harassment and bullying policy, making all employees aware of the policies and their implications.

Managers and supervisors should also be trained in equal opportunities and harassment issues. This is one reason why ensuring that you have proper equality and diversity training and procedures in place can be so important.

In addition, as these are historic allegations, and because there is a three-month time limit within which an employee must bring a discrimination claim, it is likely that the claim would be out of time.

However, a tribunal can extend the time allowed for bringing a discrimination claim if it thinks it is just and equitable to do so. It may be that a claimant could convince a tribunal that the delay was caused by an unsupportive social context, where victims feared recriminations if they reported the perpetrator. It could be argued that this has now shifted sufficiently in the wake of the Weinstein scandal and others like it to allow victims to come forward.

If that were the case, it is possible that an extension would be granted. However, this would be a far from straightforward case for a claimant to run, and would not be guaranteed of success.

Employers should also be mindful that, under the Equality Act, it is unlawful to victimise an employee or worker because they have raised allegations of discrimination, including harassment.

As such, if an employee perceives that the business is handling such an issue unfairly, or if they are subject to recriminations by the accused, there is a risk that they may bring a claim. As a result, employers should ensure that employees who raise such allegations are treated fairly.