The politics of sexual harassment

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The Lord Rennard ‘saga’ continues to play out in the news as he announces his intention to take legal action against the Liberal party if they don’t lift his suspension following an investigation into alleged sexual harassment of four female party members.

The investigation was conducted in accordance with the party’s membership rules and headed by an independent criminal barrister. After gathering evidence, the enquiry recommended that Lord Rennard should apologise to the women involved for any distress caused but found it was ‘unlikely that it could be established beyond reasonable doubt that he had intended to act in an indecent or sexually inappropriate way’.

This was an interesting approach and it has come under fire from many quarters. Firstly, it reflected the criminal test of guilt, (beyond reasonable doubt) and, secondly, it focused on Lord Rennard’s intentions rather than how his behaviour had affected the women involved.

Whilst this was a party, and not an employment, investigation it is worth making the point that the approach adopted in Rennard should come with a boldly worded Government Health Warning. If followed by an employer, it would almost certainly end in spectacular failure at tribunal. Even if settled beforehand, there would be huge potential for damage to both company reputation and to employee morale.

The approach of the Rennard investigation was at complete odds with the legal test that employers must use as enshrined in the Equality Act 2010. Employers must look at whether the alleged harasser engaged in unwanted sexual conduct which violated someone’s dignity or created an ‘intimidating, hostile, degrading, humiliating or offensive environment’. It is not necessary for an employer to prove allegations ‘beyond reasonable doubt’. The key is that the employer must have a genuine and honest belief in the misconduct based on reasonable grounds which naturally includes a reasonable investigation.

Moreover, unlike the approach taken in the Rennard case, it is the effect of the conduct on the victim rather than the harasser’s intention that is relevant. There is no need to prove that the employee meant to commit the harassment or even that they were aware of the effect it was having on the victim. Innocent protestations along the lines of ‘it was just a bit of banter’ or ‘s/he didn’t seem to be upset’ are liable to be pounced on in cross examination and will go down like a lead balloon before a tribunal panel.

Most disciplinary and anti-harassment procedures specifically allow employers to discipline and, in certain cases, to dismiss employees who harass colleagues, sexually, racially or because of any other protected characteristic. Complaints of workplace harassment require competent handling. There needs to be a clear focus on the legal test. It is this that will provide the investigation’s framework and ensure that the right questions are asked amid the usual associated ‘white noise’. The Rennard enquiry is a good illustration of how not to do it!