It’s difficult to give specific advice relating to sexual harassment complaints because there are particular facts applying to each situation, according to Renae Harding, Partner at Jackson McDonald.
Harding’s first and foremost recommendation is for HR professionals to take the complaint or the allegation seriously.
This means that they are not assuming guilt on behalf of the alleged wrongdoer, and they are not brushing away the complainant thinking it’s nonsense or that there is no basis to it.
“These are very difficult, sensitive and emotional types of allegations,” Harding told
HRD.
“Both the complainant and the respondent deserve for the matter to be dealt with genuinely, in the sense of coming to the investigation with no predetermined guilt and looking at all the evidence objectively.
“The complainant obviously deserves to have the complaint thoroughly investigated and determinations made, but so does the respondent.”
Harding said employees should be presumed innocent until proven otherwise, and that it’s essential for HR professionals to treat the complaint and the investigation in a highly confidential manner.
“Rumours and innuendo can start at the drop of a hat, so it’s important that the complainant and the respondent are informed to treat the matter confidentially, in addition to any other witnesses that are being interviewed within the process as well,” said Harding.
“What you are effectively looking for is a quick resolution to the complaint, but in an objective manner where there is no predetermined guilt or innocence either way.”
She added that everyone should be mindful to ensure the emotional wellbeing of the parties, so if organisations have employee assistance programs (EAP) available, they are made aware of those types of programs and can access them.
“The key is to actually look for the facts in an investigation. A common problem we find with people investigating any investigation, whether it's sexual harassment or anything else, is that they rely on the witnesses making the conclusions, rather than bringing it back to what are the actual facts of the matter.
“Then it’s about comparing and contrasting those facts to find out what has actually happened or not happened.”
When you are dealing with sexual harassment, there is the possibility that the allegations might involve criminal conduct, Harding added.
That’s something that the HR professional and the person investigating needs to be aware of because it might be that you need to be recommending the complainant report to the police.
“It might be that there is a police investigation that is undertaken to start with which is another important issue to be aware of,” she said.
“You might engage a law firm because we are dealing with an area where the employer might be liable for conduct at the end of the day.”
Harding added that it is useful for a HR professional to consider obtaining outside expertise to assist in this process because they can be very complicated and highly emotive allegations to be dealing with.
“So it’s always ideal for HR practitioners to stop and think: Is this something I feel capable of investigating? Am I an independent unbiased person who can conduct the investigation and not caught up with the allegations or a witness to the allegations?
“Do I need someone external to the organisation investigating it or do I need to be getting advice from legal practitioners or consultants to be able to guide me through this process?”
Renae Harding is speaking at the upcoming HRD Employment Law Masterclass being held in November 2017.
For more employment law insights register today for the HRD Employment Law Masterclass. Find out more at http://law.hrdmag.com
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