Handling a complaint
As an employer, you should:
- take any complaint of sexual harassment very seriously
- think very carefully about the way you handle a complaint, to make sure you do it fairly and sensitively and follow the right procedures
- tell everyone involved in the complaint what the process will be
- handle the complaint as quickly as possible
How someone might make a complaint
The employee or worker making the complaint may talk to you to try and resolve the problem informally.
They may raise a grievance instead, if they feel that either:
- raising it informally has not resolved the issue
- it's too serious to raise informally
You may have your own specific sexual harassment policy and procedure, or a bullying and harassment policy, for handling sexual harassment complaints. If so, your employee or worker should follow that policy and procedure to make their informal or formal complaint.
The complaint might come from:
- the person who's experienced sexual harassment
- someone who's witnessed it
Find out more about:
Talking to the person who's made the complaint
When you're talking to someone about their sexual harassment complaint, think carefully about what you say to them. Some things will not be appropriate or acceptable.
For example:
- do not tell someone it could be a long and difficult process, or ask them if they're sure they want to go ahead – this could imply you think they should not carry on with the complaint
- do not say their complaint does not seem that serious – you should treat all complaints very seriously
Keep an open mind
It's important to remember that sexual harassment is unwanted behaviour of a sexual nature.
To be sexual harassment, the unwanted behaviour must have either:
- violated the person's dignity, whether it was intended or not
- created an intimidating, hostile, degrading, humiliating or offensive environment for the person, whether it was intended or not
You should not let your own views influence a situation or dismiss a concern. For example:
- if you get on well with the person accused of sexual harassment, or think they're a decent person, this should not influence how you handle the situation
- behaviour you personally do not find offensive or unwanted might have a very different effect on someone else
You should not doubt a sexual harassment complaint simply because it happened away from other people or nobody else witnessed it.
You must not ignore or cover up a sexual harassment complaint.
Non-disclosure agreements
You should not use a non-disclosure agreement (NDA) or 'confidentiality clause' to stop someone reporting sexual harassment.
You cannot use a non-disclosure agreement to stop someone whistleblowing or reporting a crime.
What you must do as an employer
You must follow a full and fair procedure in line with the Acas Code of Practice on disciplinary and grievance procedures.
You may decide that the most appropriate way to handle the complaint is by asking the person who's experienced sexual harassment to raise a formal grievance. Reasons for asking them to do this might include the seriousness of the complaint.
If the person does not want to make a formal complaint because they find it too distressing to put it in writing, you might consider a disciplinary procedure against the person they're complaining about.
You may have a specific sexual harassment policy and procedure, or a bullying and harassment policy, for handling sexual harassment complaints. If so, you and the person making the complaint should follow that policy and procedure.
In some cases, you may only have the word of the person making the complaint against the word of the person they're accusing. For example if the incident happened away from other people or nobody saw it. After hearing the evidence from both sides in a fair process, you can still decide the case is valid if you believe the person who made the complaint.
If the case reaches an employment tribunal
The procedure you've followed will be taken into account if the case reaches an employment tribunal.
An employment tribunal will expect you to have taken all reasonable steps to prevent sexual harassment. Otherwise, you could be held responsible too. This is called 'vicarious liability'.
There are strict time limits for making a claim to an employment tribunal. In most cases, someone has 3 months minus 1 day from the date of the incident.
A complaint may still be considered at an employment tribunal if the tribunal decides that both these things apply:
- there's a good reason for the person taking more than 3 months to tell Acas
- it's fair to you to allow their case to go ahead
Find out more about employment tribunal time limits
Complaints a long time after the incident
If the complaint has been made a long time after the incident took place, you should still:
- take it very seriously
- deal with it completely, or as far as you possibly can
In some cases where a lot of time has gone by, there may be limits on how far the complaint can go. For example, if:
- the person who's been accused of sexual harassment no longer works for you
- witnesses no longer work for you
- some of the evidence was destroyed a long time ago because it was thought it was no longer needed
- it's too late for the person making the complaint to make a claim to an employment tribunal (although it may still be considered if the tribunal decides there's a good reason for taking more than 3 months to tell Acas and it's fair to the employer to allow the case to go ahead)
You should still investigate even if the person making the complaint has run out of time to make a claim to an employment tribunal.
From the start, you should talk to the person who's made the complaint about any potential limits that might be relevant. In these kind of circumstances, you should:
- look into their complaint as far as you possibly can
- keep them informed
- let them know the outcome as soon as there is one
When it's a crime
If someone tells you they have been sexually assaulted or raped at work, they may want to report it to the police.
You should talk to them about whether they want to tell the police, and should support them if they choose to report it. Before doing this, you should:
You should not put any pressure on them to make any particular decision. If they do not want to tell the police, they do not have to.
In most cases, you should go along with their decision. But you might decide you have to tell the police yourself in some circumstances. For example, this might include if you or the person who's made the complaint think there's likely to be:
- an ongoing risk to their safety or the safety of others
- an increased risk to their safety because they're a vulnerable person, for example they have a mental health condition
Before telling the police, you should talk about it with the person who's made the complaint. You should also let them know once you've told the police.
If you're not sure what to do, you should make sure you get specialist and legal advice.
If it's been reported to the police or it's going through a court
It's unlikely you'll have to wait for the criminal process to finish to:
- investigate the complaint
- carry out a workplace disciplinary procedure
But you should check with the police before doing either of these things, and consider getting legal advice, to make sure there is no risk of prejudicing the criminal process.
You should give information to the police if they ask for it.
If you wait for the criminal process to end and it does not result in a conviction, you may still be able to take disciplinary action. This is because the level of evidence needed to prove a crime is higher than for an employer's disciplinary process to decide that a workplace disciplinary offence has been committed.
Supporting someone who's made a complaint
Being sexually harassed is extremely distressing and can be life-changing.
The person making the complaint may be very worried that:
- they will not be taken seriously
- you will try to make them confront the person they say sexually harassed them
- they might be quizzed about their personal life
- other people will find out personal information about them
- they will be victimised for making a complaint
You must make sure none of those things happen.
You should make sure that:
- reporting sexual harassment is as easy as possible
- the person who's experienced it or witnessed it feels safe and protected
- you offer the person mental health support, for example through an employee assistance programme (EAP) if you have one
- you talk to them privately and allow plenty of time
- the person investigating the complaint is impartial and trained for the role
If there's a hearing
If the complaint leads to a grievance hearing (or a hearing through your specific procedure for handling sexual harassment complaints), you must allow the employee or worker to be accompanied at the hearing, if they make a reasonable request. This must be someone they work with or a trade union representative.
They might ask if they can bring a friend or family member instead. It's up to you to decide. You do not have to agree to it, unless it's written in their employment contract or your workplace's policy.
In a few cases, however, you must let them bring a second person if they ask, for example if they're a vulnerable person who needs specialist support because of a mental health condition.
Supporting someone who's been accused
It's likely to be very distressing for an employee to be accused of sexual harassment. It’s a very serious matter for them too.
You must:
- carry out a fair and thorough investigation and handle it very carefully
- not presume the accusation is either true or false
It's important to offer support and sensitivity to the person accused so your handling of the complaint is balanced. They may be very worried that:
- what they say will not be taken seriously
- you may try to make them confront the person who accused them of sexual harassment
- they might be quizzed about their personal life
- other people will find out personal information about them
You must make sure none of those things happen.
You should make sure that you offer the same kind of support that you would for someone who's made the complaint. For example:
- talk to them privately and allow plenty of time
- offer them mental health support
- assure them that the person investigating the complaint is impartial and trained for the role
If there's a hearing
If there's a disciplinary hearing, you must allow the person who's been accused to be accompanied, if they make a reasonable request. This must be someone they work with or a trade union representative.
They might ask if they can bring a friend or family member instead. It's up to you to decide. You do not have to agree to it, unless it's written in their employment contract or your workplace's policy.
In a few cases, however, you must let them bring a second person if they ask, for example if they're a vulnerable person who needs specialist support because of a mental health condition.
Confidentiality
You should keep the complaint as confidential as possible. People should only have appropriate information on a strictly need-to-know basis. For example:
- the person who made the complaint and their trade union representative
- the person who's been accused of sexual harassment and their legal adviser
- close family of the person who made the complaint and the person who's been accused
- the person investigating the complaint
The importance of confidentiality should be explained to all of them.
Protecting staff after a complaint
Depending on the circumstances, you may need to take steps to protect the person who's made a sexual harassment complaint as well as other staff.
In some cases, for example if there's a serious risk to the employee who's made the complaint or other employees, you may want to suspend the person who's been accused while you're dealing with the complaint. You should think very carefully before suspending someone as there may be other options.
Find out more about suspension and other options in suspension during an investigation.
You should not move the person who's experienced sexual harassment to a different part of the organisation, for example while you're handling their complaint, unless they've asked to be moved. Moving them when they have not asked for this could be seen as a punishment for complaining.
Deciding what action to take
Once you've carried out a full and fair procedure looking into the complaint, you should decide on the outcome, including whether the complaint is upheld or not.
'Upheld' means you've decided the complaint is valid.
This usually means you've decided there's enough evidence to do one or both of the following:
- recommend actions that need to be taken to resolve the complaint
- follow up with a disciplinary procedure and consider disciplinary action if appropriate
Find out more about deciding on a disciplinary outcome
If you decide to follow up with a disciplinary procedure, it's unlikely that you'll need to investigate the complaint again. But if you feel you need more information for the disciplinary procedure, you should investigate again.
If you have a specific policy for handling sexual harassment complaints, it may say that you should use one investigation for both looking into the complaint and any follow-up disciplinary procedure. Look at your policy to check what you should do.
Whether to tell the person who made the complaint
You should consider on a case-by-case basis whether to tell the person who made the complaint about what disciplinary action, if any, has been taken. You should tell them if you can.
You'll need to check your policies and General Data Protection Regulation (GDPR) privacy notices. This is to make sure they allow the person who made the complaint to be told about any disciplinary action taken against the person who harassed them.
You might want to consider telling the person who made the complaint, on the condition that who they can tell is limited and that those people keep it confidential. For example:
- their legal adviser or trade union representative
- close family
- to meet a legal obligation
You should make it clear to all staff that your policies and privacy notices may allow these steps.
If you find that your policies and privacy notices do not currently allow this, you may be able to change them for when you deal with any future complaints.
You should check your policies and privacy notices regularly to see if they need updating, and not wait until you get a complaint.
Find out more about data protection from the Information Commissioner's Office (ICO)
Managing the situation afterwards
You should consider carefully if you need to take any further steps to manage the situation.
If the complaint is upheld but the harasser is not dismissed
If the complaint is upheld but you decide not to dismiss the person who carried out the harassment, you should consider taking steps to help improve working relationships and support those affected.
For example, your options might include one or all of the following:
- counselling
- more equality training for the person who carried out the harassment
- moving them to another location or role to keep them apart from the person they harassed
- other steps to prevent sexual harassment
If the complaint is not upheld
If you decide that the complaint did not amount to sexual harassment, you should consider taking steps to help manage working relationships between the people who were involved in the complaint.
For example, steps might include:
- counselling
- giving someone responsibility for trying to manage the working relationships of people involved in the complaint so they can work together effectively again
- offering other roles if a breakdown in a working relationship cannot be resolved
If the complaint is upheld and the harasser is dismissed
If the complaint is upheld and the person who carried out the harassment is dismissed, you should consider whether you need to take any other steps. For example:
- offering staff counselling
- taking steps to prevent sexual harassment in the future
- if your workplace is open to the public, how you'll make sure the person who carried out the sexual harassment cannot target the person who made the complaint against them
Acas support for employers
Acas can help with sexual harassment matters. You can: