Employer’s obligations when faced with #metoo
OPINION: The recent focus on sexual harassment has led to a number of new avenues opening up for victims to seek support and have a voice.
In March, Alison Mau launched #metoonz, in partnership with Stuff. This movement provides a ‘‘triage system’’ for people to lay a police complaint, or to access specialist counselling. Mau says the process of collecting evidence and corroborating complaints will be rigorous.
Another platform that has emerged is the #metoo blog launched by Zoe¨ Lawton, a legal consultant, following the Russell McVeagh allegations. Lawton’s blog provides a space for people in the legal profession, including law students, to share their own experiences of harassment anonymously. Her intention is to print them on April 9, 2018 and provide them to the New Zealand Law Society.
Unfortunately, in many cases, victims of sexual harassment feel that their only option is to remain anonymous, for reasons including fear of victimisation or retaliation.
So, what should an employer do when they receive an anonymous complaint to ensure they balance the need to provide and maintain a safe working environment while recognising the legal rights of the accused?
There are two types of anonymous complaints. Those that are completely anonymous, where an employer is not aware of the identity of the complainant; and those where the complainant approaches their employer wanting to make a complaint on the basis their employer will protect their anonymity.
As a general principle, an employee who is accused of wrongdoing is entitled to know who has accused them. It is difficult to defend yourself without knowing all of the details of the complaint, including who, what, when and where. Therefore, employers will face significant hurdles in undertaking a legally
In many cases, victims of sexual harassment feel that their only option is to remain anonymous, for reasons including fear of victimisation or retaliation.
robust investigation where the complainant refuses to have their identity disclosed.
This means that where a complaint of harassment is received completely anonymously, an employer may not be able to undertake a formal employment investigation or impose disciplinary sanctions. However, it may give an employer insight into workplace issues that it did not know existed and the opportunity to address those issues in another way. This could include offering training to an alleged perpetrator, improving company policies, or using the complaint as a basis for conducting an environmental audit.
One such option is using a feedback tool such as a 360-degree review to establish whether there have been other incidents or concerns in the workplace. However, employers need to be careful that they are not seen as soliciting complaints or breaching their obligations to be fair and reasonable to the accused person.
Where an employer is approached by an employee who wishes to make a complaint of harassment anonymously, the first thing they should do is offer the staff member support and reassurance. It is important that employees know that they will not face any adverse consequences for formally raising genuine concerns and that the employer will keep them safe.
Often it will help for an employer to explain the process for making a formal complaint, and the steps the employer will be required to undertake in conducting an investigation. It may be that understanding what is involved may encourage an employee to make a formal complaint. It is for this reason that having robust policies and procedures in place is so important.
If an employee expresses a desire to remain anonymous, then they should be advised that the employer cannot deal with the complaint by way of a formal investigation, unless the events are able to be independently verified without the complainant’s input or account.
Regardless of whether the employee decides to progress with a formal complaint, they should be offered ongoing counselling and steps should be taken to ensure that they are kept safe.
Finally, potential complainants should be aware that if they raise a complaint with their employer and say they do not want their identity passed on to the person concerned, they are legally entitled to privacy and to remain anonymous.
Also, even if an employer is not able to conduct a formal investigation on the back of an anonymous complaint, there are other actions that can be taken to monitor the alleged perpetrator and get to the bottom of what is going on.
Some people may say that it is unfair to the alleged perpetrator to have complaints made about them behind their back.
That may be so, but a balance needs to be struck on this highly sensitive issue.