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Can You Mediate Sexual Harassment Complaints? Should You?

As sexual harassment in high places is attracting a lot of coverage in the Press this week, here is a new thought.

What if, instead of pillorying the accuser and exposing the victim to the trauma of formal grievance or Employment Tribunal proceedings, you could find a solution where victims regarded their honour as satisfied and perpetrators came away with a much fuller understanding of others’ perceptions of their behavior and its impact on them, but with their value to the business retained and working relationships preserved?  And what if that solution could be reached in around a fortnight, cost at worst a few £1,000s and be substantially confidential between the parties? Who sensibly would not go for such a thing?

Some sexually harassing behaviour just is not forgivable by the employer even if the victim is seemingly willing to let it go, not least because he/she may feel (or actually be) under peer or management pressure not to “stir up trouble” for an otherwise popular and/or successful senior colleague.  On the other hand, take the view of Michael Fallon’s accuser, who told BBC Radio this week that “if he has gone because he touched my knee 15 years ago, that is genuinely the most absurd reason for anyone to have lost their job in the history if the universe”   There must be many such cases where (initially at least) the victim would just like an acknowledgement from the perpetrator that he/she overstepped the mark and some sign of awareness that it cannot happen again.  Not all harassment complainants bear any ill-will as a result, though that is not at all the same as saying that the attention was not unwelcome.  They may then choose not to raise a grievance, not because they think the behaviour was right but because they fear a loss of perspective on the part of the employer in relation to the harasser.  To portray all such complainants as seeking revenge and cash would be entirely wrong, and yet it is that which formal grievance procedures tend to do.  As a result, low-level behaviours which ought to be corrected before they become something more serious can often go unremarked upon.

Next time an allegation of harassment or bullying comes up in your business, why not ask the alleged victim very early on what he/she would seek from the complaint in an ideal world.  Except in the most serious cases this is likely to be no more than an apology and some degree of real reassurance that it won’t happen again.  I conflate bullying and harassment here because at their hearts is the same point, a serious loss of self-awareness leading to the conscious or unconscious misuse of power in the expectation that there will be no push-back.  That there may at the same time be the use of a particular word or a sense of physical threat may be enough at law to turn bullying into harassment, but it does not necessarily affect the underlying issue.

Therefore a process like mediation, which confronts the accused with the direct consequences of his/her actions and in effect forces him/her to explain them, can be very powerful.  If successful, it enables the employer to say that the matter has been addressed to the complainant’s satisfaction and that steps have been taken to prevent recurrence.  It also gives the employer a concrete platform from which to take robust disciplinary action should there be a recurrence nonetheless.  A successful mediation also allows the employee to obtain the swift and discreet remedy which many of these cases cry out for, and it will also be an embarrassing and draining process for the perpetrator which will not be quickly forgotten.

Bear in mind also that mediation is a two-way street.  The alleged harasser would also have the opportunity to explain his/her own feelings – perhaps that he/she was under great pressure at the time, or that while he/she was admittedly rude to or about the complainant, it was not triggered by gender but some objective deficiency in that person’s work.  It may also be the case that the complainant has simply mis-read conduct which was actually entirely innocuous.  One way or the other, it is possible that once the other’s facts or intentions are explained, all or much of the heat goes out of the situation.

If mediation is refused or fails, then the employer’s position is not prejudiced so long as it was not obviously unreasonable to suggest it in the first place.  It will only be in circumstances where the conduct complained of was clearly gross misconduct that this is likely to be the case. However, the reasons for which the mediation is refused or fails may well inform the approach which the employer later takes to resolving the formal proceedings, so it is not time wasted in any case.

So while all the political parties fall over themselves to say how “seriously” they treat this sort of thing, do remember that “seriously” and “formally” are not necessarily the same.  You can deal seriously (or more important, effectively) with many issues of this type by an early offer of mediation without causing the tremendous peripheral damage to working relationships and the wider business which full-blown grievance and disciplinary proceedings will almost inevitably cause.

© Copyright 2018 Squire Patton Boggs (US) LLP

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About this Author

David Whincup, Employment Attorney, Squires Patton Boggs Law Firm
Partner

Following ten years at a Magic Circle firm, David has been Head of our London Employment practice since 1994. His expertise gained from twenty-five years as a specialist Employment Law practitioner covers a wide variety of employment-related issues, including in particular individual and team recruitment issues, policy and contract drafting, disciplinary and grievance procedures, individual and collective redundancies, the defence of employee discrimination and dismissal claims and other litigation, whistleblowing, employee health, data protection and matters surrounding...

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