Having to raise an allegation of sexual misconduct in the workplace will be one of the most distressing and stressful moments in anyone’s career. The #metoo movement has undoubtedly emboldened people to raise concerns and encouraged organisations to take these issues seriously. But we are also seeing increasingly robust defences from those accused and employers following strict and careful procedures to be sure to follow a fair process.
So what needs to be considered before raising an allegation, and whilst you go through the process that is likely to follow?
1. What legal protection do I have?
If you complain about harassment or bring a discrimination claim you have specific protection against victimisation under the Equality Act 2010 (even if your complaint is not upheld). However giving false evidence or making a false allegation, will not be protected if it is done in bad faith.
2. Check the staff handbook for any relevant policies
Your firm is likely to have a Grievance Policy, and may also have a separate Anti-Harassment Policy. This will set out the process that you and your employer should follow and may involve an “informal” and a “formal” procedure.
An informal process does not mean that no notes will be made, or that the matter will not be escalated to HR and/or senior management. Even if you raise an allegation “informally”, your employer may nevertheless consider that a formal process is necessary especially if the allegation is serious.
The ACAS Code of Practice on Disciplinary and Grievance Procedures sets out the basic process that should be followed in the circumstances.
3. What would you like to achieve from the process?
Whilst accepting that no one can “turn back the clock”, it can be helpful to think upfront about the outcome you would like to see. Do you want to try and encourage cultural change, be moved to a separate team from the perpetrator, or see him/her subject to a disciplinary process? It is good to communicate your expectations to your employer.
4. Who should I raise my complaint with?
Where appropriate, you should follow the process set out in the relevant policy. If you are not comfortable doing so, perhaps because your complaint relates to your line manager, then you should raise your concerns with someone of the same seniority.
5. Your first account is important
A formal process will generally involve you submitting your complaint in writing. This is your opportunity to set out your version of events, and to prepare the document at your own pace. The clearer your account is, the easier it will be for your employer to investigate your complaint.
However even if you are involved in an informal verbal process it is wise to prepare in advance – including the points you want to raise and phrases of how incidents made you feel.
Any inconsistencies or changes to your version of events during the course of the investigation may come under scrutiny.
6. Can I raise a complaint confidentially?
In order to investigate your allegation, your employer is likely to need to speak to others. You may ask your employer how they are going to maintain confidentiality in such circumstances. This can work both ways, particularly while the investigation is on-going, and you may be asked to keep the matter confidential to help the firm conduct a fair process. But any request for confidentiality should not prevent you from taking legal advice or reporting an allegation to the police.
7. How to navigate the investigation process
The firm will need to investigate the complaint and decide if the matter needs to be taken further (for example by instituting disciplinary proceedings against the alleged perpetrator). In many cases, these tasks will be undertaken by different people.
As part of this process you are likely to be asked for additional information, as your employer seeks to clarify certain details and perhaps reconcile your account with those of the accused and other witnesses. You may have the right to be accompanied by a colleague at any investigation meeting. This can be a helpful source of support.
If there are other individuals that you would like the investigator to speak to, it can be helpful to name them.
8. Look after your health
The investigation will involve talking about what happened, and being asked questions that you might find difficult to answer. It is important for you to receive the emotional and, if appropriate, medical support that you need. Check if your firm offers benefits that might help, such as an employee assistance programme, private medical insurance or access to counselling sessions.
9. What will happen next?
If the firm upholds your allegations, it will make recommendations. These could include disciplinary proceedings against the individual(s) involved. Appropriate actions will depend upon the severity of the incident(s), and these could include practical measures such as additional training for staff.
No one can take away the fact that this is going to be a very stressful situation for you to cope with. But if the right practical steps are taken at the outset the process need not be as difficult as it may seem. And no one, at least these days, is suggesting it is best to just grin and bear conduct that is unacceptable in the workplace.