Claims of harassment, be they current or historical, are everywhere at the moment. Regardless of your view on the legitimacy of some of these, what is undeniable is that employers can’t continue to make allowances for the types of conduct that are being reported without risking significant legal exposure.
To assist employers in identifying the behaviours that could give rise to valid discrimination complaints, we’ve produced a series of “myth busters” to help separate fact from fiction, all of which have been published on this website over the last week.
Of course, if you’re an employer and would like to discuss any of the issues touched on in these posts, please contact one of our HR consultants in confidence and without delay for some initial advice free of charge and without obligation.
Myth: An allegation of sexual harassment should result in the immediate suspension of the alleged harasser.
Fact: Not necessarily. Although suspension will often be appropriate where the allegations at hand amount to gross misconduct, employers should deal with each case on its own merits and in the context of the individual circumstances. Suspension should not be imposed without such forethought and as a knee-jerk reaction as this could be perceived as pre-judging an outcome and risks breaching the implied term of trust and confidence (Gogay v Hertfordshire County Council [2000] IRLR 703 CA, McClory and others v The Post Office [1993] IRLR 159 HC).
In fact, it is possible for an employee to challenge suspension via the grievance procedure, in which case such a grievance would then need to be addressed with a view to determining whether the circumstances of the case justify suspension from work. In extreme cases, injunctions have been sought to prevent suspension (Mezey v South West London and St George’s Mental Health NHS Trust [2007] EWCA Civ 106 CA). However, thus far, this has been restricted to the public sector.
However, if the employer has reason to believe that the employee poses a risk to the business, or that his / her continued presence in the workplace may threaten the ability to conduct an unfettered investigation, a period of suspension is likely to be appropriate. That said, the period of suspension should still be kept to a minimum and the continued need for the employee to remain suspended should be regularly reviewed.
At Employee Management Ltd, our HR support consultants provide commercially minded employment law advice and bespoke HR services that can actively reduce your organisation’s exposure to litigation. We also offer a comprehensive employment tribunal representation service through which we can handle any claims you do receive. If you’re an employer faced with a complaint of harassment from an employee that you fear could eventually lead to litigation, please contact us for a confidential, no-obligation discussion.