Last year saw a chorus of sexual misconduct allegations – particularly in Hollywood – build to a crescendo with claims against media mogul Harvey Weinstein and the perpetuation of the #metoo movement. Hollywood, however, was just the beginning of the general public's exposure to the almost institutionalized sexual harassment occurring in workplaces.
Last week, The Financial Review published three articles on sexual harassment allegations, two coming from Australia's big-four accounting firms – EY and KPMG – and the other from New Zealand powerhouse law firm, Russel McVeagh.
While the media often focuses on the conduct of the perpetrator – and rightly so – one matter often overlooked is the legality surrounding how employers deal with employees who have been subject to sexual harassment allegations.
If an employer gets it wrong and, for example, terminates an employee without sufficient evidence to substantiate the sexual harassment allegations or does not conduct the investigation and disciplinary process properly, the employer can find itself the subject of potentially expensive claims by the employee. Employees who are faced with the daunting task of receiving a complaint regarding another employee should, at the very least, bear the following matters in mind.
Firstly, employees who receive a complaint are duty-bound under the Occupational Health and Safety Act, as well as common law, to investigate these allegations.
Secondly, an employer ought to keep all matters regarding the nature of the allegations confidential. Not only does disseminating the allegations and details of the investigations potentially put the employer at risk of breaking its obligations to the employee charged with sexual assault claims, but it also has the potential of compromising the integrity of the investigation.
Thirdly, the employer ought to put the allegations in writing, present them to the employee subject of the allegations and give them a chance to respond (both verbally and in writing). Proper consideration also needs to be given to the evidence presented from both sides, without any pre-judgments made on the outcome.
Lastly, given the delicate nature of these matters, employers should seek specialist advice immediately upon an employee lodging a sexual harassment claim.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
