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Overview: Employment Law and the year of harassment claims

As our Employment and Labour Law team looks back on the year that is closing in on an end, one particular topic stands out: Harassment claims. In 2018, the number of cases in which we have provided advice in relation to harassment claims has increased significantly. Although many of the cases that clients have reached out to us for have been #metoo related, the number of harassment cases not related to #metoo has also been high.
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One typical case was the one that one of our clients found itself in this summer. The HR director called us up and wanted to discuss a performance management case. The story was familiar to anyone working with HR or management: An employee was not performing well. His manager gave him feedback that he was not performing well. Some time passed. The employee didn’t improve, and the manager continued telling him that she was not happy with his performance.

Fast forward a couple of months, and the employee sends an email to the manager’s boss, stating that his manager is a bully that causes the entire department to walk on its toes out of fear of upsetting her. The manager’s boss went to the manager and told her to fix this. The manager went to HR for advice and the HR director picked up the phone and called us to discuss what to do.

Our advice in this and the many similar cases is simple: Although a gut reaction will often be that the harassment claim is put forward simply as a consequence of the performance management case, an employer should always investigate whether the employee has in fact been harassed. Only when it has been ruled out that the employee has not been harassed should the performance management case continue. What “investigate” means will vary from case to case. Often, it is sufficient to talk to the employee and to the manager and subsequently conclude. In other cases, further investigation is required, for instance talking to other employees and reviewing written documents.

Four elements are crucial regardless of how extensive or limited the investigation is: First of all, the harassment claims cannot be investigated by the alleged harasser himself or herself. In our discussion with the HR director, out advice was that HR guided the manager’s boss in looking into the allegation. Secondly, allow the alleged harasser the chance to comment on all allegations. We advised the HR Director that he and the manager’s boss invite the employee to an interview to allow him to explain his situation. After this conversation, the HR director and the manager’s boss should have a conversation with the manager and explain to her all the allegations and allow her to comment on them.  The third crucial element of an investigation is to always document what you do. In our discussion with the HR director, our advice was to create a log of the steps that the company took, and to ensure that minutes were made from the conversations. And fourth, make sure that you inform both the alleged harasser and the employee about the conclusion of the investigation.

The HR director called us up a week later and informed us that all conversations had been held and were documented, and that as recommended, they had also looked into the previous three years of employee surveys in the department. We discussed the findings and the conclusion was clear: Although there was indeed some areas of improvement for the manager in her handling of the performance management case, no harassment had taken place. We advised the HR director to arrange two meetings; one between the manager’s boss and the manager and one between the manager’s boss and the employee. In both meetings, the manager’s boss informed about the outcome of the investigation. In the meeting with the manager, the manager’s boss would in addition explain the areas of improvement. In the meeting with the employee, the manager’s boss would also explain that going forward, the company expected the employee to improve his performance and continue the dialogue with his manager.

We would of course have shared our client’s enthusiasm if we could have ended this story by explaining that the employee improved his performance and that the relationship with his manager normalized. Not unexpectedly, that was however not the case. One day after the meeting with the manager’s boss, the employee called in sick. Since then, our dialogue with the HR director has been on the do’s and the don’ts and the strategic approaching in the handling of this situation. But that’s a story to be told later.