What to do if you are accused of sexual harassment at work
Employment lawyers who know how to deal with a claim of sexual harassment.
An accusation of sexual harassment is a serious allegation. Even if you believe that the sexual harassment allegation is untrue or fabricated you must treat it as being of the upmost importance.
If an accusation of sexual harassment by a colleague is upheld against you, then it is will probably be, at the very least, considered to be misconduct. Usually if an allegation of harassment is upheld it will be considered to be “gross misconduct”, which will allow the employer to terminate you immediately without any notice (and without any other financial compensation).
It is important to carefully consider the allegations made before you make any comments which could be taken out of context or be considered to be an inadvertent admission of guilt.
To help you understand the process, and to answer any additional questions you may have, our expert team of employment layers have put together this useful guide. Or if you want to speak to someone right away contact us using the details below.
What is sexual harassment?
Sexual harassment occurs where both (1) a person engages in unwanted conduct of a sexual nature and (2) the unwanted conduct has the (deliberate) purpose or (accidental) effect of either violating the other’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.
The word “unwanted” means the same essentially as “unwelcome” or “uninvited” and it does not mean that express objection is made to the conduct before it is deemed to be unwanted . Unwanted conduct includes any unwanted verbal, non-verbal or physical conduct and a single incident can be enough to constitute harassment.
Sexual harassment is therefore unwanted behaviour of a sexual nature. Under the Equality Act 2010, an employee has the right to be protected from sexual harassment at work. This right extends to:
• employees and workers;
• contractors and self-employed people hired to personally do the work; and
• job applicants.
Any of these categories of people can bring a sexual harassment claim in the Employment Tribunal against the organisation and the individual who made the unwanted act.
A person can be sexually harassed by someone of different sex or the same sex. For example, women can harass male colleagues, and harassment can occur between peers of the same level. However, currently the majority of sexual harassment claims are by female employees against a more senior male colleague.
Examples of Sexual harassment can include:
• Sexual comments, jokes or memes.
• Displaying sexually graphic pictures, posters or photos.
• Suggestive looks, staring or leering.
• Propositions and sexual advances.
• Making promises in return for sexual favours.
• Sexual gestures.
• Intrusive questions about a person’s private or sex life, or a person discussing their own sex life.
• Sexual posts or contact on social media.
• Spreading sexual rumours about a person.
• Sending sexually explicit emails or text messages.
• Unwelcome touching, hugging, massaging or kissing.
There is no definitive list as much will depend on the subjective opinion of the person making the complaint. There has been recent high profile case in which the act of a male boss looking at both his male and female colleagues’ social media profiles was deemed to be sexual harassment, which shows how the subjective element of the test may lead to uncertainty and sometimes to harsh decisions.
The informal stage and the disciplinary hearing.
If you have been accused of sexual harassment by a colleague (or a third party such as a client or supplier) then your employer is likely to start an investigation as the first stage. This investigation is at the ‘Informal stage’ and is undertaken by an independent person not involved in the incident. It is usually investigated by someone internally, perhaps by HR or a peer. The investigation is into the facts and background of the incident or allegations.
Although the investigation stage is a so-called “informal stage” and is not technically part of the formal disciplinary proceedings, in our experience, the investigation is very often a precursor to the formal Disciplinary Process.
Unless the investigation makes a factual determination that the incident or allegation did not occur, or that there is not sufficient evidence to proceed to the next stage, then usually the employer proceeds to a Formal Disciplinary for the Disciplinary Chairperson to make a decision about what occurred, and what is the appropriate sanction (if any).
An investigation should not merely look for evidence that you may have done the act as alleged, but also look for exculpatory evidence which supports your innocence or relevant context and mitigating circumstances. It is important that you fully engage with the investigation stage and also remind your employer of their obligations and highlight all relevant exculpatory evidence to ensure that the investigation is even-handed, thorough and fair. If the investigation is flawed or prejudicial against you, then this increases the risk that the allegation will be upheld and/or that the most severe sanction will be imposed (namely summary dismissal for gross misconduct without any notice payment.)
If we use the analogy that the investigation is akin to the Police looking for evidence relating to whether or not a reported crime occurred; then the Disciplinary Hearing is the equivalent of a Court Hearing in front of a different and independent function which considers the evidence from the Investigation Report (and may also test you on your witness evidence).
You should consider if there is any evidence which will establish or point to your innocence, or relevant factors to explain the context of what occurred. You should make a note of and retain all relevant evidence including which could establish your innocence, such as emails, WhatsApp or other messages, as well as witnesses you may request be interviewed.
You should ask for a copy of your contract and any relevant policies in the Staff Handbook (such as the Disciplinary Policy or Dignity at Work policy) which will help you understand your employer’s process and timeframes, as well as your rights.
As a general point, you should not copy any confidential documents or send confidential work documents to your personal email. You should be cautious about creating new emails or documents about the harassment allegation because if there was litigation then these new documents may have to be disclosed to the court or other parties.
What is gross misconduct?
Misconduct is when an employee breaches the rules of the workplace. So-called “ordinary” misconduct can include things like an employee regularly being late for work or unauthorised absence from work. Gross misconduct refers to very serious conduct, behaviour, actions or omissions by an employee that is sufficiently serious to justify summary (instant) dismissal. Gross misconduct can include theft, dishonesty, physical violence, being drunk at work and bullying or harassment. Sexual Harassment and/or Harassment is usually explicitly stated within contract or staff handbooks as being sufficiently serious to be deemed to be Gross Misconduct.
In the ACAS Code of Practice on disciplinary and grievance procedures, ACAS recommends including examples of gross misconduct and most employers should have examples of what it considers as serious enough to be deemed as gross misconduct and misconduct.
Even if your employer has not specifically included harassment or sexual harassment in their policies or employment contract as potential misconduct, most employers will consider sexual harassment to be potentially gross misconduct.
Gross misconduct is potentially a fair reason for an employer to dismiss an employee immediately (after a disciplinary process if they have been employed for 2 years) without any notice payment.
What if the allegation of sexual harassment occurred outside the workplace and outside the office?
Sexual harassment can still occur if it happens outside the workplace with a colleague or client and you can, potentially, be dismissed for sexual harassment outside the office or outside working hours.
In fact, misconduct and sexual harassment accusations often occur at social events such as Christmas parties, informal drinks for co-workers or on work-trips. Alcohol is often the common denominator in many outside the office harassment or misconduct allegations.
Employers may be liable for sexual harassment which has occurred between colleagues “in the course of employment”. Sexual harassment which is likely to be in the course of their employment includes informal social events with colleagues (such as informal after-hours drinks), travelling to conferences, online virtual events, via social media such as LinkedIn, Facebook, Twitter or email and WhatsApp messages etc subject to their connection with the workplace.
Harassment by co-workers can also occur outside the office building, including travelling to work events, and even in the home (for example if someone works from home and is harassed via social media, messages, calls or conference calls by a colleague).
Employers are likely to consider any allegation of sexual harassment between co-workers as an extremely serious matter and relevant to their employment, even if it happened away from the workplace or outside working hours. Employers should therefore investigate any allegations of outside the workplace harassment properly and in line with their internal disciplinary policy.
Sexual harassment which happens outside working hours or outside the office is a legitimate ground for disciplinary sanctions and dismissal. The key issue will be whether the misconduct relates to the employment relationship, and often the focus is on the damage to the employer’s reputation. Allegations relating to sexual misconduct and assault or violence away from the workplace with colleagues or clients are likely to deemed by an employer to affect the employment relationship, often because this is likely to or damages to the employer’s reputation.
What are the different types of sexual harassment claims?
There are 3 different types of harassment recognised by the law.
The general definition for harassment is defined as unwanted conduct which has either the (deliberate) purpose or (accidental) effect of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment potentially.
Types of sexual harassment can include:
Unwanted conduct of a sexual nature
This is sexualised conduct. Examples include flirting, commenting on yours or someone else’s’ body, sexual innuendos, propositions and invitations for social events, leering and suggestive gestures, hugging, massaging, kissing or touching, and sexually explicit jokes. Asking questions about another’s romantic or sex life or sharing those details. It can include sharing and forwarding sexual or risqué jokes or comments including via emails or other messages.
Unwanted conduct related to sexual advances (whether you have accepted or rejected the sexual advances/sexual harassment)
In either case, if you are subsequently treated less favourably treated as a result that is sexual harassment. Examples include intentionally blocking your promotion or training opportunities, demotions, poor appraisals or bonuses, derogatory comments or unwarranted criticisms.
Unwanted conduct related to sex (gender)
This is unwanted conduct which relates to sex/gender.
Examples include, for example, hostile comments about childcare arrangements (if you are a female) and you have to constantly leave work early to care for your young children. Jokes about a particular sex/gender, even if it’s not directed at you or about your sex.
How long do HR sexual harassment investigations last?
Any sexual harassment investigation should be completed as quickly as possible by the employer so that the issue is resolved for everyone involved. You should check your contract, Staff Handbook or relevant policy as they may have a framework for investigations and disciplinary processes with a suggested timeframe for how long the investigation process should take.
Often the Disciplinary Policy says that the investigation will ideally be finished in 1 to 2 weeks however, often these guidelines are optimistically short. The length of time will be on a case-by-case basis and unfortunately sexual harassment investigations can sometimes take employers many weeks or even several months to complete, depending on the number of allegations or witnesses, as well as the availability of staff to investigate or provide statements. If it is a small organisation, or the allegation is about a senior employee then investigations can take significantly longer.
In our experience, unfortunately some employers often take many months, sometimes over 6-months, to investigate any harassment claims, sometimes due to lack of staff resources or lack of competency. These unreasonable delays can lead to unfairness and unnecessary stress for the person accused.
How long does HR have to investigate a complaint?
ACAS Guidance states that it is important for employers to carry out necessary investigations into potential disciplinary matters, which includes sexual harassment allegations, “without unreasonable delay” to establish the facts of the case.
If you have been accused of harassment, an unreasonable or unjustifiable delay in completing the investigation may be unfair to those involved and you, particularly if you have been suspended. If you have raised a concerns about sexual harassment then you will want it resolved as quickly as possible, particularly if the person you are concerned about remains in the business, and because you will have 3 months (less a day) from the date of the act complained of to commence the formal process for an employment tribunal claim for sexual harassment against the employer or relevant employee (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). An employer should still investigate even if the person making the complaint is too late to make a claim to an employment tribunal.
In most cases, an employer will hold an investigatory meeting with the employee before proceeding to any disciplinary hearing. In others, the investigatory stage will be the collation of evidence by the employer for use at any disciplinary hearing.
Even if the complaint has been made many months or years after the alleged sexual harassment incident took place, the employer should still take it very seriously and investigate and deal with it completely as possibly. However, there may be practical issues such as the person who’s been accused of sexual harassment or witnesses no longer work for the organisation, memories have faded, documents or messages no longer exist (per the Data Retention Policy etc).
Do I have to participate in a HR investigation?
As an employee you have a duty to follow reasonable lawful orders, including attending investigation meetings. An employer cannot compel an employee to speak about something they have witnessed or experienced. Although, if you have been accused of harassment, then it is in your interests to engage and co-operate so that the employer can understand the relevant context and has all the facts.
The employer can only make a decision on the information available, so if you have been accused and fail to co-operate with the investigation, in absence of a legitimate reason, this is likely to reflect poorly on you and your defence.
If you have legitimate concerns, such as the person investigating being biased or you have a medical condition which is not being taken into account in the investigation, then you should explain this in writing in a professional manner. If you are concerned about retaliation or victimisation (if you are a witness or you have information on the real perpetrator) then you should discuss this with the investigator or HR. Witnesses and victims have protection from being dismissed or punished.
The purpose of an investigation is to see if there is a case to answer, make sure everyone is treated fairly, gather evidence from all sides and help the employer to see what should happen next. If the employer does not carry out a reasonable investigation, any decisions they make in the disciplinary or grievance case are likely to be unfair. This unfairness could risk legal action from the employee accused of harassment. If there is anything you believe is unfair in the process or generally in the investigation, explain the issue and suggest solutions where possible. Check your employer’s rules and policies on Disciplinary matters which may be in your contract, staff handbook or the Disciplinary and Grievance Policy.
The ACAS Code of Practice on disciplinary and grievance procedures | ACAS states that for a fair and reasonable investigation stage to be carried out, the employer should:
• Carry out necessary investigations of potential disciplinary matters without unreasonable delay to establish the facts of the case.
• In misconduct cases, where practicable, get different people to carry out the investigation and disciplinary hearing.
• Despite it not being a statutory right, allow an employee to be accompanied at a formal investigatory meeting.
• Where there is an investigatory meeting, this should not by itself result in any disciplinary action.
• In cases where a period of suspension with pay is considered necessary, this period should be as brief as possible, should be kept under review and it should be made clear that this suspension is not considered a disciplinary action.
Should I resign if under sexual harassment investigation at work?
This will depend on your particular circumstances, and you should seek your own legal advice on this point, as it will depend on your notice period, the allegation, your role (including whether or not you are regulated) and your contract.
However, it is not usually recommended to resign if you are under investigation, as you will still be expected to fully co-operate with the investigation during your notice period. An employer can continue the investigation and conduct the disciplinary hearing during your notice period, and so you still may be dismissed for gross misconduct during your notice period even after you resign. Resignation may also be taken to indicate guilt by an employer.
There may be specific circumstances which need to be discussed but resigning may not stop an investigation or disciplinary decision, and some employers may seek to detail that you resigned during an investigation into sexual harassment in your reference. It will also depend on whether or not you are regulated and so you should obtain specific advice depending on your role.
Does sexual harassment need to take place at work? Can sexual harassment occur outside the work place?
No, it can still be sexual harassment if the harassment occurs outside the workplace or outside normal working hours. Sexual harassment accusations often occur at or after social events with colleagues such as Summer or Christmas parties or even informal drinks for co-workers or on work-trips.
It will still be sexual harassment outside the workplace or outside working hours if it occurs between colleagues “in the course of employment”. This includes external informal social events, travelling to conferences, online virtual events, and even in the home via social media such as LinkedIn, Facebook, Twitter or email and WhatsApp messages etc.
Does an accuser need evidence of sexual harassment at work?
There does not need to be evidence that the sexual harassment occurred at work or at the workplace. The accuser may not have any physical or written evidence if the sexual harassment allegation is a verbal comment, then it is their word against yours. Or it may be a complaint about touching or a look, without any witnesses or physical evidence.
The employer will need to assess each account for credibility, and there may be evidence which is taken into account such as a diary or other notes made of the alleged incident, or messages to others about the incident, particularly if they are made at the same time. There may be other evidence which is submitted such as if the individual tells their GP or there is electronic evidence.
An accuser does not need evidence to make an accusation, however a reasonable investigation will need evidence or a reasonable basis on which to make a decision.
Is sexual harassment at work a criminal offence?
It will depend on the act of harassment. Sexual harassment can include acts of touching, physical assault or rape, which may be treated as both an employment matter and separately a criminal offence if it happens between colleagues or with a client.
If there is a suspected criminal offence your employer may make changes to the usual process including postponing its investigation so that it does not prejudice a criminal investigation. However, an employer can make its decision separately and faster than a criminal investigation so usually will not want to wait on the outcome, and the burden of proof for an employer is lower than for the criminal courts.
If you have been accused of a criminal offence at work, or are concerned that this is a risk, then you need specialist criminal legal advice. Any admissions you make to your employer could be used by the police so it is essential that you get specialist advice at an early stage, and we can assist with recommending suitable criminal lawyers to work alongside us to protect you. Always discuss any concerns about a criminal offence with your lawyer to get specific legal advice about your circumstances.
There are existing criminal offences which can be used in cases of public sexual harassment. An offence of harassment already exists under section 2 of the Protection from Harassment Act 1997 (the 1997 Act). A person who pursues a course of conduct which amounts to harassment of another person, and which they know or ought to know amounts to harassment, can face up to six months in prison or an unlimited fine. The 1997 Act states that harassing a person includes alarming them or causing them distress. It also states that a course of conduct is either doing something more than once towards one other person or doing something at least once towards more than one other person.
Section 4 of the 1997 Act also created an offence of putting someone in fear of violence. It provides that a person whose course of conduct causes another person to fear, on at least two occasions, that violence will be used against them, is guilty of an offence if they know or ought to know that their course of conduct will cause the other person to fear that result on each of those occasions. A person found guilty of this offence can face up to ten years in prison.
This means that, in both cases, a single act directed towards a single person is not covered by the offence. The same applies to the two separate offences of stalking created by the 1997 Act. The Public Order Act 1986 (the 1986 Act) created three offences which are relevant here and which can be used to tackle a single act of harassment. In the 1986 Act there is also Section 4 offence of fear or provocation of violence, Section 4A the offence of Intentional harassment, alarm or distress, and Section 5 Harassment, alarm or distress. You will need specific advice on any potential criminal allegations.
What will happen to me after I have been accused of sexual harassment at work?
It will depend on the allegation but employers often consider whether suspension is necessary or appropriate during the investigation or any disciplinary process. If you are not suspended, you may be given instructions about not contacting witnesses or the person who made the complaint. You may also be requested not to attend the workplace or social events until the matter has been resolved. The restrictions should be reasonable and relate to the allegation or risks to the employer or its workforce.
Whether or not you have been suspended, there should be an internal investigation conducted by the employer. You and the person who is accusing you will be interviewed, and any potential witnesses. The investigator will collate relevant evidence, including elements which you highlight is relevant. The investigator will consider other evidence which may be relevant to your innocence or the allegation, including recorded telephone records, CCTV, instant messaging or emails.
The investigation should be undertaken as quickly as possible, and as confidentially as possible. Your colleagues should not be told about the allegations or, if relevant, why you are out of the office. If your colleagues have been told about the investigation, perhaps as part of the investigation or as they are your line manager, then they should be informed that this should be kept confidential. It is not fair to you if your colleagues discuss the allegations as it may make your return to work more difficult after your name has been cleared, or if the disciplinary sanction is a warning or other sanction short of dismissal.
What should you do if you think you have been wrongly accused of sexual harassment at work?
Regardless of whether an accusation of sexual harassment is valid or not, it can cause untold damage to your reputation, financial position, career and mental health.
In the instance that you are wrongly accused of sexual harassment, we would advise individuals to seek immediate specialist legal advice on the basis that an employer will need to take the accusation seriously and investigate the complaint in accordance with their internal policy. There is usually a significant risk that an employee may face dismissal if the sexual harassment allegation is upheld, even in part.
Our expertise is regularly sought in regard to defending sexual harassment allegations and we would be able to advise you on how to conduct yourself throughout the investigation process, which would include not retaliating or engaging with the accuser, to avoid a future claim of victimisation. You should collate any relevant evidence and prepare a response to the allegations while they are fresh.
Where an allegation of sexual harassment is wrong or malicious, we could also assist you in making a formal complaint to your employer and also assist with putting your version of events across during the investigation.
As your lawyers, we can help prepare a robust defence and ensure that the employer follows their legal obligations to you, and all relevant mitigating circumstances or relevant context factors are brought to the employer’s attention.
What can you do if you think you have been unfairly disciplined or dismissed for sexual harassment?
If you are concerned about the disciplinary process while it is occurring you can consider raising a formal written grievance (such as if they do not allow you to be accompanied to a disciplinary or have not make adjustments to allow you to attend given your reasonable personal circumstances – such as childcare or if you have a disability).
If you have not already submitted a Data Subject Access Request for all of your personal data (under the GDPR) then often this can be a useful strategy during an appeal process.
Following the conclusion of the disciplinary process, you will be able to prepare a robust appeal against the employer’s decision. Usually, employers request that the formal written appeal is submitted within 5 days but you should check your employer’s disciplinary policy and any relevant correspondence you received during the disciplinary process for a deadline. You are entitled to appeal against:
• The decision your employer made;
• The evidence that your employer relied on to make their decision;
• The fairness of the disciplinary procedure;
• The type of disciplinary action made against you (such as it is too harsh or inconsistent with previous penalties).
When appealing, you will be able to present new evidence and set out your reasoning as to why you think the disciplinary action/dismissal was unfair. This appeal will need to be set out in writing, a task which we regularly deal with.
The appeal should be dealt with by a more senior manager, who has not been involved in your case before. An appeal meeting will then be held to either review the disciplinary action against you or re-hear your whole case.
Following the outcome of the appeal, if you are still unhappy with the disciplinary action/dismissal, you can make a claim to an employment tribunal. You may have a claim for unfair dismissal in the instance that your employer has failed to allow for a fair investigation or disciplinary process.
However, claims to the employment tribunal will need to be made within three months less one day from the date of the matter complained of, and for unfair dismissal claims you will need to be an employee and have been employed by your employer for two years.
We would advise that regardless of what course of action you decide to take, you engage with a solicitor to ensure you are advised as to your options and ensure your version of events is effectively conveyed to your employer.
What sort of compensation is awarded for wrongful sexual harassment claim?
The compensation you receive will depend on the unfairness of your treatment and the type of claim you have, as well as personal circumstances such as your remuneration and ability to find alternative employment.
If your employer dismisses or treats you unfairly, you may have an unfair dismissal claim. The current statutory compensatory maximum for a claim of unfair dismissal is £105,707 (as of 6 April 2023) or 52 weeks gross salary whichever is the lower. This is in addition to the basic award up to a maximum of £19,290 (as of 6 April 2023). These are updated, usually increased, each year from 6 April onwards. You can calculate your basic award using this government tool as the basic redundancy award is the same as the unfair dismissal basic award. Calculate your statutory redundancy pay – GOV.UK (www.gov.uk)
An Employment Tribunal has the power to reduce both the basic award and the compensatory award if it finds an employee’s conduct contributed to the situation, or where an employer can show that even if they had followed a fair process it still would have dismissed (the so-called Polkey defence). In situations where the employer has failed to follow a fair disciplinary procedure per the ACAS Code, they may also be required to uplift the compensation by up to 25%.
If you have been dismissed without notice, when it was not really a “gross misconduct” incident, you are entitled to your contractual notice and contractual benefits, as you can only be dismissed without contractual payments such as your notice payment if it is gross misconduct. If it is an “ordinary” misconduct dismissal, and you are subsequently dismissed without notice, then you should receive your notice payment and any other benefits you would have received had you been dismissed in accordance with your contract.
If your employer treated you less favourably in the investigation or disciplinary process because of a protected characteristic (such as your race, sex, sexual orientation, age, disability etc) then you may have an unlimited compensation claim which is assessed against your financial losses, and an injury to feelings award. Discrimination claims and whistleblowing claims are not subject any government cap (unlike unfair dismissal awards.)