Sexual misconduct is rarely out of the news this day, and in many instances, this occurs in the workplace. In this article, we’ll be sharing advice on how businesses should respond to sexual misconduct allegations.
When an allegation of sexual misconduct is made, it can lead to digital forensics investigation; the outcome of which can sometimes damage a company's finances and reputation.
As a result, businesses often don’t know the most appropriate way to respond as the situation can be triggering for many. However, it’s important that businesses do respond to any incidents to reassure employees and consumers.
In this article, we’re sharing tips on how businesses should respond to sexual misconduct allegations in order to avoid litigation and adverse publicity.
What is Sexual Misconduct?
This is an umbrella term which encompasses a number of activities which are sexual in nature, and which may make an employee feel uncomfortable or suffer distress. These include:
Inappropriate touching: The act of touching a colleague’s body in an inappropriate manner without permission.
Digital content: The sending or sharing of inappropriate images or text to a colleague, for example, what is known as a ‘dick pic’ or other graphic images.
Inappropriate verbal communication: Indulging in sexual jokes or banter to or about a colleague. Sexual harassment -The act of sexualising a colleague by asking them out or making indecent proposals.
What is a Digital Forensics Investigation?
This is a process in which data from an employee’s or company’s digital presence is collated, analysed and reported on in order to ascertain whether or not sexual misconduct has taken place.
This kind of digital forensics investigation will often take place when a company has failed to properly address an allegation of sexual misconduct. This type of investigation will seek to find a range of incriminating content such as graphic images and inappropriate communications which have been sent to or shared with the accused.
How Should Businesses Respond to Sexual Misconduct?
When an allegation is made, however trivial it may seem, it's important that a business acts fast to avoid an escalation of the matter and, the steps which should be taken are as follows:
Initial Interview
Arrange a meeting with the accuser during a quiet time and in a private office where you will not be interrupted. Ask the accuser for as much information as he or she has, including any physical evidence such as emails, text messages or social media content. Be sure to stay neutral throughout the meeting while remaining sensitive to the accuser’s feelings.
Digital Audit
If the sexual misconduct has been carried out through business emails or other business platforms, instruct IT / HR to conduct an audit of the accused’s business digital media in order to identify and capture any such content which should be stored securely as evidence.
Interview the Accused
Once evidence has been secured, arrange a meeting with the accused to present your findings and to hear his or her side of the story. Before the meeting, make it clear that the accused has the right to have a colleague or acquaintance in attendance with them. In a great many cases, when presented with evidence, the accused will respond in one of a few ways such as:
• It was just a bit of banter – they’re just too sensitive
• They have never said anything to me about this
• They are just annoyed because I rebuffed their advances
During the meeting, it's important that you remain neutral and non-judgmental; even if your instinct tells you otherwise.
Next Steps
If the sexual misconduct has been serious - i.e. physical or particularly distressing, your next course of action may be to contact the police in order to escalate the situation. If you deem the misconduct to not be serious enough to involve the authorities, arrange another meeting with the accuser in order to ascertain what action they would like or expect to be taken. In many cases, such action may be:
• A written warning - this may depend on how many warnings the accused has already had as, if more than two, this may be a case for dismissal.
• Suspension for a short period of time.
• Regular monitoring of the employee’s professional digital presence.
• A written apology to the accuser.
In many cases, the accuser wants nothing more than for the misconduct to stop - and to be able to conduct their work without harassment. In a lot of instances, one of the above will be sufficient in terms of resolving the matter to the accuser’s satisfaction.
What Businesses Should Avoid Doing
Handling a sexual misconduct allegation is a sensitive and potentially damaging matter and, as such always avoid:
• Brushing the matter away as being trivial or ‘just banter’
• Appearing to take sides - even if this isn't the case
• Making personal comments which are not relevant to the case in question
When dealing with these matters, it's essential that you take them seriously as failing to do so may provoke the accuser into escalating the situation.
Protect Employees Through Policy…
Everybody has the right to go to work and perform their duties without harassment and, in 2022, businesses really need to be making a stand and implementing a zero-tolerance policy on this kind of behaviour. Put together a comprehensive policy for sexual misconduct and make sure that this is distributed to each and every member of staff to ensure that everybody is aware of the possible consequences of such behaviour in the workplace.
Please be advised that this article is for general informational purposes only and should not be used as a substitute for advice from a trained legal professional. Be sure to consult a lawyer/solicitor if you’re seeking advice on sexual misconduct and investigations. We are not liable for risks or issues associated with using or acting upon the information on this site.
