The legal obligations may also increase in light of current trends. Restrictions on “NDAs” (non- disclosure agreements) may lead to employment contracts being updated, as well as impacting the use and contents of settlement agreements.


HOW CAN AN EMPLOYER DEFEND A SEXUAL HARASSMENT CLAIM? An employer will have a defence if it can show it took reasonable steps to prevent harassment. Note that this is preventing the harassment, not resolving a complaint once raised – by this time it can be too late to avoid liability. Employers should consider taking the following action:


n Implementing clear policies;


n Actively training staff to promote an environment that does not tolerate any form of harassment;


n Engaging with staff to discuss what is and is not acceptable behaviour and to find out if and where there is a problem;


n Having clear and open channels to raise complaints; and


n Dealing promptly, in accordance with policy, with any allegations of harassment, even where simply suspected, raised “informally” or where not raised directly by the “victim”.


The above action points will also assist employers in addressing historic complaints as they will make it more difficult for an employee to justify why they did not raise the issue at the time.


It is worth remembering that a finding of bullying and harassment can have devastating consequences for an individual. It can therefore lead to claims from the accused, to whom, in the heat of serious allegations, employers can sometimes forget that they also owe obligations. A thorough and well-handled investigation with a balanced conclusion is key.


We advise employers on dealing with harassment complaints and on the steps they should take to prevent harassment, including drafting policies and providing training.


7


Diversity, Inclusion and Workplace Behaviours – The Business Agenda


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