Below is a short guide on what you should do in advance of such an allegation surrounding Sexual Harassment in the workplace.
This piece of advice can be read in conjunction with our previous article relating to grievances.
Is there a policy in place?
Every organisation should have or develop a policy in relation to Dignity and Respect at Work Policy. This will ensure that the process is carried out in an effective, professional, fair and consistent manner. Your code of practise might already be developed in house and may be an internal document - ask to see it. Your policy might include some of the following which would provide you with more clarity as you proceed:
What is dignity and respect in the workplace?
Definition of Harassment
Definition of Bullying
Vicarious Liability provides that where an employee commits any wrongdoing in the course of their employment, that employee themselves be directly liable for their action. You, as the manager/employer, can be held vicariously liable for the actions of your employee because the employer is in control of the actions that the employee carries out in the course of their employment.
The good news for you, as a manager/employer is that you can avoid liability if you can demonstrate that you took steps to prevent an incident of harassment and if you can demonstrate that any complaints were dealt with after the incident.
Section 15 (3) of the Employment Equality Acts 1998 - 2011 requires employers to
"take such steps that are reasonably practical to prevent an employee from doing that act or from doing in the course of their employment, acts of that description".
The only way for you to fully demonstrate that they took steps to prevent such acts is to ensure that your Company has have clear written policies in relation to equality and bullying / harassment.
It is advised that as a Company you should provide appropriate training to any staff members who have staff management functions. Not all managers will have this skill set and such conflict resolution training should be rolled out in your Company in order to increase the chance of the complaint being dealt with at an early stage via the correct procedures. This training should absolutely be kept under review in light of developments and best practice in this area and show management the basics in addressing grievances in the first instance.
Your Company Policy should have several routes for your employee to invoke should he/she so wish. A typical policy will have 3 routes; Informal, Mediation and Formal. Given the nature of your explanation it is highly likely that in an allegation of sexual harassment it will be the formal route.
The employee would need to provide you with a written statement detailing the allegations. This allegation would be issued to the subject of complaint [SOC]. Further investigatory meetings may take place with any witnesses, if deemed appropriate.
The decision regarding the outcome of the complaint will then be made to the Complainant as either substantiated, unsubstantiated or malicious. If substantiated it will proceed to the disciplinary procedure with the SOC. If malicious, it will proceed to the disciplinary procedure with the Complainant. If the grievance is unsubstantiated the grievance simply ends there. Remember all procedures have the right to appeal.
The operation of a good grievance procedure requires the maintenance of adequate records. It is important to have a paper trail documenting each step of the grievance. Remember if this particular grievance ends up in the WRC "if it isn't in writing it did not happen". If you cannot show you have given a fair procedure how can you expect the WRC to decide in your favour?
Personal Top Tips:
Make sure that if an employee raises an issue that he/she is provided with the procedure and is fully aware of what will happen. If in doubt seek advice.
If you require further information, please do not hesitate to contact us on 066 7102887 or visit www.thehrsuite.com for more information.