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Mediating harassment complaints, Part 2 – the view from Westminster

When I wrote my recent piece on the role of mediation in sexual harassment allegations https://www.natlawreview.com/article/can-you-mediate-sexual-harassment-complaints-should-you, I had no idea that Parliament was in the throes of debate about the exact same question.

At noon on 16 November, Leader of The House of Commons Andrea Leadsom rose to her feet to address the rank and file MPs on the steps being taken to tackle harassment and abuse in Parliament. Amid a great deal of My Honourable Friending and Madame Deputy Speakering and remarkable little political point-scoring, the Commons was repeatedly assured that Parliament’s intended new procedure would be independent, transparent, and open to everyone.

All good stuff, though one wonders from the suggested inclusion of a specialist sexual violence service if there is actually much more unpleasantness going on within Westminster than is reported, or if this is instead merely the element of possible knee-jerk over-reaction which I mentioned in my earlier post. What the debate does highlight beyond doubt, however, are fundamental and cross-party misconceptions around the nature of both harassment and the mediation process.

One MP urged that “mediation in cases of sexual harassment is never appropriate“. This was echoed by MPs from other parties who railed equally against equating harassment with bullying despite their obvious similarities and significant overlap, demanding a separately-named procedure which would not (unlike Parliament’s Respect policy on bullying) contain the option of mediation.

This is all astonishingly unfortunate stuff. It implies not least that it would be possible to tell from the very start of a complaint whether it is about sexual harassment on the one hand or ordinary bullying or poor management on the other. Both at law and in fact, the difference between the two can be extremely thin. It also assumes that all harassers of either gender or any orientation are thinly-disguised predators. It is obvious from the statutory definition of harassment in Section 26 Equality Act that it arises from the purpose or effect of the conduct. Therefore it requires no malice or intention, and does not necessarily have to pose any threat at all to the victim. Legally, the threshold for actionable offence is pretty low. In a similar debate on 30 October, the same MP described sexual harassment as a “crime”, but while this no doubt colours her views of the application of mediation, it rather overlooks the fact that of the entire spectrum of behaviour which may constitute sexual harassment, only a tiny part is anywhere near criminal in nature.

What no-one in these debates has focused upon adequately is what happens after the formal process, whatever it turns out to be, has run its course. What happens to the parties in any case where the alleged harasser stays in post, either because the allegation is rejected or because on the found facts it simply isn’t serious enough to warrant his/her having to step down? Remember that MPs employ their own staff direct, so there is little or no scope for redeployment or transfer to separate them. The fact remains that after the shouting and recriminations are all over, the protagonists in most cases will have to continue to work together even though, by the very nature of the allegation made (and especially if it has to go through a separately-named resolution procedure), that relationship is very likely to be shattered whatever the formal outcome. The only fair and sensible way to achieve this to the best interests of all concerned, perhaps the victim most of all, is via mediation. Ms Leadsom has told the House that her working party on the new procedure is seeking input from a variety of relevant bodies – let us hope that common sense prevails over debate of the quality seen on this point so far.

© Copyright 2017 Squire Patton Boggs (US) LLP

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About this Author

David Whincup, Employment Attorney, Squires Patton Boggs Law Firm
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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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