In a recent case we dealt with, our client had received a bullying complaint from an employee who didn’t want any formal investigation or action to be taken.
What are the risks here, and what should employers do in this situation?
Much will depend on the seriousness of the allegation/misconduct in question and the type of misconduct involved. The fact that an employee does not want formal action to be taken may be taken into account when looking at the reasonableness of any investigation undertaken, but will not get an employer off the hook in the event of a later complaint.
Investigations can be carried out without the co-operation of a witness, and other staff should be interviewed to ascertain whether there is an underlying issue or workplace culture that needs to be addressed. With something like bullying or sexual harassment, it will be important to investigate, even if the complainant is uncooperative.
There may be other victims, and any previous similar complaints are likely to be relevant in the event of an employment tribunal claim. A pattern of failing to deal with the perpetrator or similar complaints is likely to be taken as an attempt to sweep matters under the carpet. The complaining employee may later change their mind and bring a claim for discrimination or harassment. The employer is unlikely to be able to defend a claim if they were on notice but failed to at least investigate before deciding whether to take formal disciplinary action. In these cases, the employer must try to understand the extent of the problem, and take any necessary steps to prevent further harassment occurring, in order to ensure a safe place of work.
The employer should try to ascertain why the complainant is not prepared to assist with the formal process and this of itself may give cause for concern, for example is the employee fearful of reprisals? If so, action must be taken to address these concerns. Failing to investigate could also amount to a breach of the implied duty of trust and confidence, as could a failure to take action where other employees are put at risk of similar harassment or bullying.
Additionally the Worker Protection (Amendment of Equality Act 2010) Act 2023 which received Royal Assent on 26 October 2023 (due to come into effect a year later) will be relevant here. This legislation introduces a new duty to take reasonable steps to prevent sexual harassment of their employees.
For more information and to speak to a member of our Employment team, please contact 01689 887887 or email email@example.com