Dealing with Requests to Drop Sexual Harassment Allegations

An employee has raised allegations of sexual harassment against a colleague. She has now said she doesn’t want to take matters further. What should you do?

It's always difficult when an employee raises an issue but says they don’t want you to do anything about it. Whatever is behind her change of mind, the matter needs some careful consideration.

In the #metoo year, sexual harassment is at the forefront of every employer's mind. All allegations must be taken seriously. Today's carpet sweepings could be tomorrow's headlines.

Take stock

Let's remind ourselves about the relevant law. Your employee has raised allegations of harassment against a colleague – another of your employees. That's discrimination. The employee is protected from discrimination, including harassment, by the provisions of the Equality Act 2010.

Although you haven't done anything directly, the company will be vicariously liable for the discriminatory acts of its employees if they take place during the course of employment (section 109(1) Equality Act 2010). A business can only escape vicarious liability if it has taken 'all reasonable steps' to prevent the discrimination occurring.

What is the background to the allegations?

As an employer, you should be concerned not only with what to do next, but what you have done already. Your approach to equality issues will form the background to the current allegations. Do you have an Equalities Policy that staff know about and are trained on? Do you live by that policy or just pay lip service to it? The answers to these questions are vital in working out whether, in theory, the company has done enough to resist a vicarious liability claim. That historical knowledge will arm your future conversations with the employee and ensure you are tooled up to deal with any formal process.

The vicarious liability angle is also something to consider going forward. Employers must take all reasonable steps to prevent discrimination occurring. That includes ensuring allegations are dealt with properly and not dropped without good reason.

What are the options?

There are three potential outcomes in this scenario:

1. The employee agrees to a formal investigation;
2. You agree to drop the allegations because you are genuinely satisfied the situation is resolved (or impossible to pursue without the employee's cooperation);
3. The employee doesn't agree to an investigation, but you want to investigate regardless.

I'll look at these three options in turn but let's go through a couple of things first.

Get the facts

If you don't yet have the detail of the allegations, then this is your first job. Allegations of mildly offensive workplace 'banter' are very different from an allegation of sexual assault. The first might be easily resolved with a quiet word and some training. The latter might be a police matter. Understand what you are dealing with before you consider what to do next. If you don't know enough, talk to the employee (more on that below).

Why the change of mind?

There could be many reasons why an employee has a change of heart once she has raised allegations. She may regret reporting something she now considers to be quite minor, once the heat of the moment has gone. An intervening event may have occurred which has changed things, such as the alleged harasser apologising. The most likely reason though is that your employee is just scared. Raising allegations of discrimination against someone you work with every day can be terrifying. That's why #metoo took so long to happen.

Your employee has probably been sitting on the issue for some time. Once she has plucked up the courage to report the issue, the enormity of the potential fallout becomes clear. She may worry her job is at risk. She may worry about the allegations becoming public and the effect on her own private life. She will certainly worry about being judged. As an employer, you need to meet these fears and assuage them. Discrimination is bad for business. It is in your commercial interests to encourage the employee to call it out.

Option 1 – Supporting the employee to engage in the process

The first thing to do is to select your most sensitive member of HR to talk to the employee concerned. Reassure her that her complaint is being taken seriously and she will be properly supported. Confirm that the information will remain confidential and will only be made known to the small team of managers dealing with the investigation (you will have to reiterate these confidentiality arrangements to the alleged harasser and any witnesses too, together with a reminder about sanctions under the disciplinary policy for any breach of confidentiality).

An employee will only be comfortable with a process if they understand what it involves. Describe how the grievance procedure works and what the investigation will look like. Most of the time, employees will be buoyed by company support and be prepared to agree to a formal investigation. Make sure that support continues throughout the process.

Option 2 – Dropping the allegations

What if the employee is adamant that she wants to drop the allegations? You will need to tread a careful line between ensuring discrimination is properly dealt with and respecting an individual's right to autonomy and confidentiality.

If the employee is adamant that she doesn’t want a formal investigation, think very carefully about whether this is best for both the employee and the business. For example, if the allegations were regarding mildly offensive office banter, and the alleged harasser apologised, you might accept her request not to formally investigate. It might still be appropriate to talk the person concerned or their manager to ensure this behaviour does not continue.

Document your conversation with the employee including the reasoning behind her decision. Note any action you intend to take (such as rolling out some workplace equalities training). Confirm that the employee should come and talk to you again if anything concerns her in future. Document that too. Keep in touch with the employee, perhaps weekly at first, to follow things up. Get both employees' managers to keep an eye on things and report any concerns.

Option 3 – What if you don't want to drop it?

What if the allegations are more serious? If they involve allegations against a manager or someone senior, or are just too serious to drop, you may want to investigate matters regardless of whether the employee cooperates. Remember that you have a duty of care not only to the complainant but also to other staff. It is dangerous to let potential discrimination go unchallenged. Aside from the moral dilemma, it is bad for business and can result in more claims being brought against the company.

In this situation, investigating the case could be difficult without the employee concerned. Take a situation where the alleged harassment has taken place with no one else present. That might be something you cannot reasonably pursue without the cooperation of the victim. But what if the allegation is that something happened at the office Christmas party in front of other colleagues? Potentially, you have witnesses who can corroborate one side or other. And potentially you have a misconduct situation, instead of a grievance. You can pursue disciplinary proceedings using the evidence of colleagues alone.

If you do choose to investigate despite protestations from the complainant, you should balance the employee's right to privacy against the employer's duty to call out discrimination (and protect itself from any vicarious liability allegations). Tell the employee what you are doing. Say who you will speak to and reassure them that witnesses will be told to keep the matter strictly confidential. Keep the employee informed. Her reluctance to be involved may wain when three other witnesses corroborate her complaint.

Can we make her give evidence?

In some cases where the employee is senior, there may be implied terms in her contract to disclose any wrongdoing by another employee. This might be the case if the individual is a director with special 'fiduciary' duties to act in the best interests of the business. It might also be the case for a very senior manager. You must be sensitive with someone who has allegedly been harassed, but this might provide some gentle leverage alongside reassurance and support.

Can we do nothing?

Theoretically there is nothing in law which requires you to investigate matters if the employee wants to drop it. You should look at the overall picture and decide whether dropping the allegations is in anyone's best interests and made from a position of genuine satisfaction rather than fear. A good employer, and the right HR manager, should be able to reassure a frightened employee that they have nothing to fear from an investigation. Remind them about #metoo, and all the other strong women that dared to stand up to harassment.