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February 22, 2019

Ask the Expert – Investigating a complaint against the wishes of the complainant

Question

One of our employees has come to HR and stated that they are being sexually harassed by a colleague. They have stated that in general terms they got on with the colleague and do not want to raise a formal complaint, but they want to flag the issue. Should we respect the employee’s wishes and not investigate?

Answer

It is common for employees to bring potentially inappropriate or even dangerous behaviour to the attention of HR/management, but ask that the organisation not make a big fuss. This is obviously unhelpful, as the organisation is then stuck with the knowledge that something untoward is going on, but also doesn’t want to betray the confidence of the employee raising the issue.

From a strictly legal perspective, there is no absolute obligation on an employer to investigate an issue if the person raising the complaint has made it clear that they don’t want the matter to be pursued.

On that basis, in some cases (e.g. where the complaint is less serious), there may be a temptation to sit on the information and see if anything further develops before taking any action. However, in this example that is unlikely to be an appropriate course of action given that the complaint relates to sexual harassment.

While the employee raising the issue may not want a fuss, there may be other employees experiencing similar harassment who have been too worried about coming forward. For example, employees generally have difficulty in raising complaints against senior colleagues, and often keep quiet out of fear for their continued employment. Opting not to investigate could therefore be seen as a breach of the organisation’s duty of care to its employees.

It’s also worth bearing in mind the political and social storm related to sexual harassment in recent times, and to the government’s promise to change the legal landscape in this area. As such, it would likely not reflect well if it came to the fore that a complaint had been raised but not followed up. It would be too easy for employees to argue that the issue had been swept under the carpet, despite you being asked not to take it further.

With the above in mind, a prudent approach would be to investigate, albeit a softer and more subtle approach may be more appropriate given that you don’t yet know the full story. As a first step, you could meet with the employee who raised the issue and ask for more detail on what is alleged to have taken place. It would also be worth asking whether this is a wider issue involving other employees. Having done so, you may be in a better position to know the steps to take next.

If the employee remains adamant that they do not want a formal investigation, this should be recorded to prevent the employee from later attempting to argue that their voice went unheard.

If other employees have been named, or there is a chance that other employees may have similar complaints (perhaps in the same team), it would be sensible to have meetings with those individuals to ask them some questions.

The subject of the complaint also has the right to expect fairness, so at this stage you may not wish to name the subject and simply ask potential witnesses if they have experienced inappropriate behaviour in general. That decision may be based on the information that you’ve gained so far, taking into account the potential fallout if an employee is incorrectly accused of sexual harassment.

Depending on their responses, and particularly if you’re not getting a clear picture, you may have to ask more specific questions that name the potential harasser. Witnesses may be reluctant to give a statement, and you can read our article on that point here.

The next stage is likely to be to meet with the subject of the complaint. By now you should know whether this was more of a misunderstanding between the person who made the complaint and the subject of it, or whether there is a serious underlying issue. That in turn will inform how to deal with the issue, which may be an informal reminder about appropriate behaviours or invoking a disciplinary procedure.

Either way, you should have evidence of taking a proactive and thorough approach to complaints, which is likely to be helpful to defend any allegations of inaction on the organisation’s part.

If you have any questions on any of the issues raised in the above article, please contact Seanpaul McCahill.

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Edinburgh
EH3 8HA