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Checklist for preventing and dealing with misconduct

02/07/2019

Inappropriate workplace behaviour and the need for an adequate response to complaints is a topic that continues to demand attention

Companies that lack proper procedures and policies to prevent inappropriate behaviour and that fail to investigate allegations of such behaviour are facing more legal exposure today than ever before. The media attention on this topic has emboldened employees to step forward with their complaints, with the general expectation that employers take responsibility and correct any wrongdoing.

Lessons learned from past legal cases and the relatively recent media coverage of harassment and inappropriate behaviour by high-profile individuals (such as media mogul Harvey Weinstein, KPMG’s senior partner Sanjay Thakkar, and the University of Amsterdam’s employment law professor) underline the importance of prompt action and thorough and independent investigation.

When misconduct or sexual harassment is reported, immediate action is required. More so if the accused happens to be a member of top management or is a high-ranking executive. The abundant examples of high-profile individuals being accused of improper behaviour over extended periods of time and only now losing their jobs over it call for a need to review internal policies and procedures. The known cases seem to have in common that subordinates, peers and sometimes even supervisors are reluctant to take action against an accused leadership member out of fear of retaliation or other reasons.

Given the exposure that comes with leadership being accused of inappropriate behaviour, employers should consider implementing (or updating) specific guidelines to prevent such behaviour in the first place; to facilitate complaints being raised with an external party; to ensure the investigation is conducted by an independent party and not by individuals who are deemed peers or subordinates of the accused; and to update their employment terms adding integrity, ethics and appropriate behaviour as job requirements.

As in all misconduct or sexual harassment cases, regardless of the accused’s rank, it is important to ensure that the assessment of the complaint is based on the actual facts and is not weighed up against corporate, commercial or other irrelevant considerations. The longer a company allows inappropriate behaviour to persist, the more it weakens its legal position in terms of a justified instant dismissal or dismissal through court proceedings. Subsequently, an employer who nonetheless insists on terminating the accused's employment will have no other choice than to agree on a settlement on the terms of separation, including a public statement that the accused chose to step down from their role.

If properly implemented, regularly communicated and consistently applied, company policy can be a powerful tool to create awareness among managers and employees, to prevent retaliation and to enforce accountability of those who act contrary to given guidelines. Generally, in litigation, the burden of proof is on the claimant to prove wrongdoing. In work-related sexual harassment cases however Dutch law shifts the burden of proof to the employer. Proper company policies will help employers to conduct investigations in an efficient and structured manner, and can also serve as the framework within which the employer can demonstrate to have fulfilled its legal obligations to ensure a safe work environment to the fullest extent possible.

Here is a checklist to preventing and dealing with misconduct and sexual harassment complaints

  • Set clear expectations by implementing policies and making sure everybody knows and understands them. Diversify between guidelines that apply to all employees and those that specifically address management and top-ranking leaders and executives.
  • Offer regular online and on-site training.
  • Consider that employees who step forward and raise complaints are doing the company favour as they are offering you an opportunity to correct a bad or illegal situation.
  • Take immediate action when a complaint is made.
  • Confirm receipt of the complaint to the complainant and inform them about the process and timelines. Immediately keep a written record of all steps.
  • Involve upper management and/or others on a need-to-know basis and in accordance with the policies.
  • If the complaint discloses facts of such a serious nature, preliminary measures must be taken, such as allowing the complainant to take paid leave or informing the accused and suspending him/her pending the investigation.
  • Conduct a proper and independent investigation and retain external experts and counsel when necessary.
  • Gather all facts and document the process meticulously.
  • Hear both the accuser and the accused.
  • Obtain supporting witness statements if necessary.
  • If the complaint is found valid take immediate action. Hold the bully or harasser accountable and impose adequate sanctions and disciplinary measures as per your policies. If no policy is available to impose sanctions or disciplinary measures that are proportional and reasonable in the given circumstances.
  • Do not forget about the victim. Inform them about the outcome of the investigation and the consequences. Offer support through coaching, counselling or stress management.
  • Do not forget the rest of your staff either. Depending on the scope of the complaint and the impact on your organisation it may be necessary to communicate and offer support more broadly. Bear in mind the limitations imposed by privacy laws or the terms of the settlement contract.

Rachida el Johari is an attorney at Saguire Legal and member of IR Global