Stepping Up Involving Police in Harassment issues (or not…?)

With sexual harassment increasingly in the spotlight, some employers feel that there is pressure to at least consider police involvement in appropriate cases of (alleged) sexual harassment.

However, what is an appropriate case?  And what impact does police involvement have on internal employment processes.

This article in our series on the new duty to prevent sexual harassment in the workplace looks at these pressing questions.

Should employers report harassment allegations to the police?

Although some issues in the workplace may be very serious, it is important to recognise that there is no requirement on employers to report any potential sex crime to the police.  Neither should employers lose sight of the fact that where there is an incident or allegation involving two (or more) employees, the employer owes a duty of care to both individuals, not just to the complainant. 

When looking at sexual harassment in the context of police involvement, we are looking at situations where it is alleged that a certain threshold has been crossed, not just in terms of equality legislation, but where there may be a criminal act.  Employers are not expected to be experts in criminal law, or assess for themselves the likelihood of whether a conviction may follow, but actively seeking police involvement is only usually considered by employers in more serious cases.

In an employment context, the Court of Appeal has previously stressed that being under the cloud of possible criminal proceedings is a very heavy burden for employees to face, and "employers should not subject employees to that burden without the most careful consideration and a genuine and reasonable belief that the case, if established, might justify the epithet "criminal" being applied to the employee's conduct"¹.  Whilst, this was stated long before the "Me Too" movement, which has highlighted that harassment of multiple women could have been prevented had issues been reported, the principle of avoiding knee-jerk reactions to allegations and conduct permeates throughout employment law.  A risk-based approach allows employers to take into consideration not only the seriousness of the allegations, but also the potential impact on the complainant.

In the majority of cases we would anticipate at least some initial investigation before considering contacting the police.  However, in very serious and urgent cases, employers may not wish to "tip off" the accused by giving them notice of potential allegations prior to contacting the police, for example because this may provide an opportunity for evidence to be destroyed.

In some cases, a balanced approach may be alerting the complainant to their right to report concerns to the police. Considering what that employee wants is likely to be important in any event.  In other cases, an employer may feel that whatever the complainant's preference, the matter warrants police involvement.  Perhaps the reputational and other risks in not reporting a particular issue may outweigh the risk of unfairness to an individual employee. 

What happens to internal proceedings when the police are also investigating harassment issues? 

Whether a police investigation commences before or during an employment investigation, the police may ask the employer to pause its own internal processes pending the outcome of the police investigation. 

Most employers will not want to wait for the outcome of criminal proceedings or a police investigation.  In the majority of cases, there will be little benefit to awaiting the outcome of police proceedings.  Criminal matters can be time consuming, there is no certainty of an outcome, and the results do not dictate an employer's decision making process. Even where the police investigation results in a charge, the employer still needs to consider what information it is appropriate to take into account and cannot blindly rely on a police view. What is required is a reasoned decision as to whether or not to delay internal proceedings.  In other words, the employer has to form its own reasonable belief in an employee's guilt, taking into account such matters as are reasonable.  Even where the employee is convicted of an offence, the employer still needs to consider the impact of that conviction (and conduct) on the employment relationship.

This series of articles focuses on sexual harassment.  There are other considerations where employees are arrested or are accused of committing other crimes, particularly if the conduct took place outside of work or where the alleged misconduct relates to financial crimes or drugs on employer premises.  In any case, where criminal acts may have been committed at work or between colleagues or otherwise, taking advice at an early stage can assist in putting employers in the best possible position to protect their reputation, their employees and to mitigate commercial and financial risk. 

For further information and advice about dealing with allegations of harassment, prevention of harassment, or about dealing with other potential criminal acts by employees, please contact Ranjit Dhindsa