The challenge of dealing with Sexual Harassment Claims

How do you balance a victim or complainant centred approach with the realities of a sexual harassment claim in the workplace? There is a lot of talk at the moment about what is the best practise approach to sexual harassments claims in the workplace. From an HR perspective, it can be a real challenge. However, we are firmly of the view that you can take the matter seriously, find out what is going on, sensitively support the claimant and still provide natural justice to the respondent.

Often it is the HR Manager who is left exposed and under pressure with various elements within the organisation. You have to get it done fast, be transparent, provide confidentiality, make sure you deal with this ‘serial complainer’, don’t go soft as we take sexual harassment seriously, you had better give the respondent a fair chance…

Often the grievance process is stuck in the rigidity of compliance and obligation, mandating a way the matter must be handled. This can be at odds with what the complainant is seeking and what’s best for the organisation. In one case we came across a complainant who was forced to describe serious sexual conduct to her manager whilst the respondent was present as policy mandated that the prior to escalation all matters must be dealt with locally first and this is what it was interpreted to mean.

We don’t pretend that this is easy, however, there is a best practice approach to these things and it can be put in policy. However, policy is secondary to how that policy is applied and the type of training and understanding that managers have that give effect to the approach. Any stage has the chance to cause untold harm to the participants irrespective of whether they are the complainant, the respondent, witnesses or work colleagues.

It is crucial that the complainant’s expectations of the process and how this process will be managed is carefully managed. We often find that the process can cause as much damage as the behaviour that is being complained about.

We recommend:

  1. Listen. Don’t blame, don’t pass judgment, take the matter seriously and record what is being said.
  2. Support. Offer to the complainant professional support. This may be your Employee Assistance Provider (EAP), sessions with their psychologist (if they already have one) or the like. We do recommend that support comes from a professional who has workplace experience as the how the support is framed and provided can go a long way to how the complainant moves through the process and what expectations are created for them.
  3. What? Ask them what they want. How do they want the matter handled? It will not be the complainant who gets to decide this, it will be HR and the organisation, however it is crucial to know that complainant wants as this will be their expectation and it will need to be managed. Often people will say they don’t care as long as the actions stop and it won’t happen to others. This is actually the really hard part. As this is often where expectations are created that are never met and where longer terms damage is often done. Do they want a full investigation, or perhaps a facilitated conversation? Is training for the team appropriate? Should consideration be given to referring the matter the matter elsewhere, such as police or is legal advice required? Is training for the team appropriate?
  4. Natural justice. What this means will vary in each case and deepened on the course of action being pursued. However, if it is an investigation then it means a fair and reasonable opportunity to respond to the allegations.
  5. Communication. Makes sure that you let the complainant and the respondent (if relevant) know what is going on. Stick to timeframes and if you can’t let people that the timeframes are changing. Being silent on this is seen as not taking it seriously and not caring. This is a key way to demonstrated that you respect the people involved. We often come across situations that have been exacerbated simply because there has not been a discipline to provide updates of where things are at.
  6. Close. The matter must be closed out. This does not mean that everybody is happy and it is all resolved. It means that all people involved know that the organisation believes that it has now dealt with the matter. There may well be ongoing actions such as management supervision, further training or the like. However, the parties should know that the new norm has been set and there are clear behavioural expectations on the new reality.

It is not a matter of competing interests as people often assert. It is about supporting people without judging them, managing their expectations and ensuring that all involved have a voice that is heard.

If your organisation needs to strengthen their approach to responding to and investigating complaints then come to our Investigations Training

22nd May 2018 OR 18th October 2018

The pressure is on to get Workplace Investigations right!

How workplace investigations are run is an ever-growing area of workplace risk and litigation. When they go wrong, they can do so spectacularly, from both a legal and a people-management perspective.

Ensure your Workplace Investigations are compliant and conducted with confidence. This training will give HR professionals the skills to develop and implement effective plans for conducting a compliant workplace investigation, the strategies to overcome difficulties along the way and the expertise to make findings of fact and subsequent recommendations.

This hands-on and practical one-day workshop will give you skills, knowledge and understanding around:

  1. Process & principles of a Workplace Investigation
  2. Evidence gathering and analysis for decision making
  3. Decision making
  4. Reporting

The training will support your learning surrounding:

  • Developing and implementing effective plans for conducting a compliant workplace investigation
  • Articulating and demonstrating the four key principles of a workplace investigation (confidentiality, procedural fairness, natural justice and timeliness)
  • Creating a concise allegation set that will assist in making findings of fact based on the balance of probabilities.
  • Planning and conducting interviews with the complainant, witnesses & respondents leveraging the power of language (eg. using open and closed questions, neutral language and body language)
  • Effective stakeholder management
  • Preparing structured written reports that support the Investigation process and findings of fact
  • Making findings of fact and implementing recommendations
  • Dealing with difficulties (eg. Complainant withdrawal, refusal to participate, collaboration, anonymous complaints etc.)

The Zalt Group are determined to increase the credibility, capability and confidence of practitioners. We investigate difficult workplace issues. We love to teach others to do what we do.

We are also running a Facilitating Difficult Conversations In The Workplace Program for 2 days on 10 - 11 October. Please contact us for more info!

If you enjoyed reading this blog, you might also like: Let's Talk About Natural Justice, Why The Allegations Matter, An Investigation In The Balance, Why Investigate, To Investigate or Not To Investigate, That's The Q!

The Zalt Group works with individuals & organisations who want to restore and strengthen workplace relationships.

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