Sex has always had an appeal for headline writers. The fact that matters relating to sexual misconduct make the news is not news. It is doubtful, however, if it has ever been more fashionable. No one is immune: MPs, business leaders, charity bosses – all are vulnerable. The ‘Me Too’ movement is virally rampant, and newspapers compete daily to report stories of how much an allegation has cost a business. Sponsors cancelling support over allegations of antique groping are a daily event. All the investment that may have been put into corporate social responsibility may be wasted by the activities of one or two individuals. That many men attended the President’s Club meeting and behaved entirely properly will not have spared any of them the anxiety caused by the overreaction to the reports of undercover journalists. Consider the illogicality of the demands made subsequently that legitimate charities should return funds raised by that and previous events. The fact that there is more than an element of unreason about much of this with the guilty, partly guilty and wholly innocent all subject to similar reactions does not mean business should do nothing.
To illustrate the degree of risk that this feverish environment is causing, consider that some lawyers are suggesting changes to the law relating to sexual harassment. If put into force, this would mean that if a complaint of harassment has been rejected, a subsequent complaint about the same person would give rise to an inference of the legitimacy of the earlier allegation. Also, the burden of proof should shift so that the approach would be that the accused was guilty until he (or perhaps she) proved their innocence. This is the same approach that led to the serious mistakes by the police in investigating allegations of child abuse where the starting point was that all complainants should be believed and were ‘victims’. That led to the damning report of Sir Richard Henriques exposing and condemning this mind-set but it plainly risks reappearing in employment law.
None of this criticism is intended to be a defence for errant behaviour. Sexual harassment is a category of bullying and frequently is an abuse of power. It should be repugnant to any well-managed business and regarded as serious misconduct if proven. The farcical idea that all of those actresses have only just become aware of the casting couch does not mean misconduct should be tolerated and more to the point, the cost of turning a blind eye is potentially prohibitive. There can be no doubt that any responsible management must realise that something has to be done.
Four top tips to deal with the current environment:
First, senior management should make clear to its HR staff and all employees the unacceptability of such behaviour. Most well-organised companies will have a policy on paper that says all the right things but that has to be implemented. To provide balance, any proven invented false allegation should also be treated as serious misconduct. There should be training on how to conduct investigations or arrangements in place to appoint independent investigators who ideally are already familiar with the business.
Second, arrangements need to be in place to deal with the publicity that such allegations create. Speed of reaction is often essential. Having advisors or staff familiar with and capable of dealing with the media and knowledgeable about the business in place in advance will always be an advantage.
Third, serious thought should be given to making greater use of a mediation process early in the day before attitudes harden on either side. This should be incorporated into any procedure for complaint and encouraged in preference to a standard grievance procedure. Mediation is confidential and usually directed at the preservation of employment. Any formal investigation or grievance process will often produce material for disclosure in proceedings about the most embarrassing evidence, all so attractive to the press. More use of mediation may reduce this risk.
Finally, it should be clear to all that no one is immune from sanction be they ever so senior. Only when this is a reality will reputation be protected.
This article is for general information purposes only and does not constitute legal or professional advice. It should not be used as a substitute for legal advice relating to your particular circumstances. Please note that the law may have changed since the date of this article.