It has been annual review season here at Squire Patton Boggs. Looking back over my efforts this year in the usual endeavour to justify my own existence, I have spotted the same scenario cropping up with unusual frequency. An employee tells their employer that they have experienced something at work that they are not too pleased about. The employer suggests to the employee that the matter be treated as a grievance and properly investigated. The employee is horrified and says that they consider the matter highly confidential and, as their anonymity could never be guaranteed, the employer must not investigate. Instead, the employer should just “keep the information on file”.
Let’s say the matter raised by the employee is an allegation of bullying or sexual harassment by a colleague (a scenario that also crops up reasonably frequently in our practice). The employer is left with a conundrum: respect the employee’s wishes and do nothing, thereby allowing an alleged sexual harasser to remain at large in its workplace? Or press on with an investigation regardless of the complainant employee’s objections, risking their wrath and potential legal claims?
A failure to take action could put the employer on the legal back foot should other employees fall victim to the same alleged perpetrator and questions begin to be asked about who knew what and when. That is clearly so when the perpetrator’s conduct amounts to discrimination. An employer will struggle to defend a discrimination...
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