Harassment in the workplace: Nine commonly asked questions

Are organisations legally obliged to carry out risk assessments? What happens if a complainant says they want to remain anonymous? The law relating to workplace harassment is complex and underwent significant changes in 2024, with further proposals expected to be introduced next year as part of the Employment Rights Bill.

This resource answers some commonly asked questions relating to investigating harassment claims and the duty to prevent sexual harassment that follow on from the recent Brightmine webinar Harassment in the workplace – a practical guide for employers on understanding the law.

Investigating harassment claims

1. Can a member of the HR team investigate harassment allegations or does it have to be an operational manager?

There is no reason from a legal perspective why an HR manager cannot carry out an investigation but one of the challenges that you need to think about – which is why a business will typically appoint an operational manager to carry out the investigation – is that HR will often be needed to provide guidance both on the investigation process and on any subsequent disciplinary process. For an investigation to be fair, it will rarely be possible for the investigator also to be involved in any subsequent disciplinary proceedings, so if you do want HR to carry out the investigation you will need to make sure that that person is not involved if the matter goes to the disciplinary stage (in an advisory capacity or otherwise).

2. Harassment allegations will always be difficult to manage due to the inevitable sensitivities involved. What do you do when an individual who brings a complaint says they want to remain anonymous? With allegations of harassment, the complainant, and possibly witnesses, may say that they will only provide evidence as part of the investigation if their involvement can be on an anonymous basis.

While their reservations may be understandable, it is important, as the employer, that you do not over promise. This is because, from a legal perspective, if an employee is going to be subject to disciplinary action regarding allegations of harassment, that employee will be entitled to know the allegations against them so they can put forward their defence. It will be very difficult for them to respond to the allegations if they don’t know the identity of the complainant or of one or more of the witnesses, which may, in turn, jeopardise the fairness of any dismissal. Equally, if the matter were to proceed to an employment tribunal, then anonymity would be very difficult – and, in most cases, impossible – to preserve.

One way to approach this is to take steps to understand, as part of the internal process, what the person is concerned about, ie why do they want to remain anonymous? It will often be the case that concerns are based on a misunderstanding of the situation and how the complaint/investigation will be dealt with and their role in it. Take the time to explain how the process will work and the person’s role. If you explore their concerns with them, you may be able to identify ways to address those concerns and so agree a way forward without them remaining anonymous.

3. If a matter progresses to a disciplinary following an investigation, can you still use the information gathered during the harassment investigation or is it a case of starting all over again?

The purpose of an investigation is to address the complaint or the allegation(s) raised by the complainant to find out what happened. In some cases, the investigator may only be asked to ascertain the facts, ie what did or did not happen. In other cases, the investigator may be asked to make recommendations as to next steps based on their findings – recommendations may include “no case to answer” or “a disciplinary process should be instigated”, for example.

Where the matter is disciplinary in nature, the person hearing the disciplinary issue should not be the same person who carries out the investigation. Where the investigation is into a grievance, while you may choose to have a different person from the investigator to decide on the grievance outcome, the same person may carry out both roles – albeit that person must not be the person against whom the grievance is made.

In either instance, when deciding on the outcome of the disciplinary/grievance, the decision-maker should rely on the findings of the investigation as part of that decision-making process – the decision-maker does not have to re-investigate. However, sometimes new, relevant matters may come to light – for example, where there are overlapping or sequential grievance and disciplinary processes, which have not been addressed in the initial investigation. In these scenarios, you would need to investigate those matters and you may need to adjourn any ongoing disciplinary/grievance process so that this can be done – usually by the same investigator, unless it is not practical or appropriate for them to do so.

4. What if the investigator really cannot decide who to believe, i.e., where it is one person’s word against another’s?

It is not uncommon, particularly when dealing with complaints of sexual harassment, for the only evidence, at the time of the alleged incident, to be one person’s word against another’s. This can make it very difficult for an investigator to decide what happened.

The investigator may find it useful to speak to any witnesses who may have been present either immediately before or after the alleged incident as they may be able to describe how, if at all, they saw the two individuals concerned interacting or behaving. While this won’t shine a light on what happened during the incident itself, it may give context to help the investigator in making a determination as to whom to believe. For example, if one of those directly involved in the incident had said they hadn’t been drinking alcohol and witnesses had seen them drinking shortly before the alleged incident, this might affect the credibility of that person.

It is also important to remember that the investigator is not looking to establish proof at the very high level required in deciding guilt in criminal proceedings – where the test is to prove something “beyond reasonable doubt”. Instead, in an employment context, an employer is required to carry out a fair and reasonable investigation and to make a decision as to whether the incident or behaviour occurred on the balance of probabilities. In an incident of harassment, for a dismissal to be fair, that dismissal needs to be within the range of reasonable responses that a reasonable employer would take. This is, therefore, a much lower bar for an employer to satisfy.

5. Should we keep records of issues resolved informally?

It is usually sensible to make a file note (or the digital equivalent) so that you have a record of the nature of the complaint and how the matter was resolved. This will be helpful, not least in terms of complying with your duty to prevent sexual harassment, either in the event that a further complaint against the same individual is made or if the complainant subsequently decides that their concerns were not treated seriously or were handled improperly.

Duty to prevent sexual harassment

6. Does the duty to prevent sexual harassment apply to employers of all sizes or is there a minimum number of employees required before the duty kicks in?

The duty to prevent sexual harassment applies to all employers regardless of the number of workers they employ.

7. Is it compulsory to carry out a risk assessment and put a policy in place?

The legislation doesn’t stipulate that you need to carry out a risk assessment in order to comply with the duty, nor are employers legally required to have an anti-harassment policy in place. But in practice, even if you are a small employer, you are going to find it difficult to show that you have taken “reasonable” steps to prevent sexual harassment of your workers if you don’t have either of these steps in place.

In particular, in response to the introduction of the new duty, the Equality and Human Rights Commission (EHRC) updated its technical guidance on sexual harassment and harassment at work to state specifically that it is reasonable to expect that employers should have policies in place aimed at preventing harassment and that employers are unlikely to be able to comply with the duty unless they carry out an assessment of the risks.

8. I am in HR and have been put in charge of completing our risk assessment but I am unsure of how to identify all the risks of where sexual harassment might arise?

While it makes sense for HR to have ownership of the risk assessment, this doesn’t mean that HR can identify all the potential risks – particularly if you are working for a medium-sized or large employer or an employer with different types of working environments. You will need to draw on the expertise and experience of different parts of your organisation to help you complete the assessment. For example, IT, operations, health and safety teams are all likely to need to be involved.

You may find it helpful to hold a workshop where you bring together all stakeholders so you can explain how the duty works and how risks might arise. From there, stakeholders can identify the potential risks in their areas of responsibility and work out and implement reasonable steps to mitigate those risks. The EHRC’s technical guidance is very helpful in setting out areas of potential risk.

The risk assessment needs to be kept under regular review to make sure new risks are identified and to ensure that mitigating steps are effective.

9. When completing a risk assessment as part of compliance with the duty to prevent sexual harassment, do you need separate risk assessments for third-party risk?

While your risk assessment needs to identify any risks to your workers of sexual harassment by third parties during the course of their (the worker’s) employment and to set out steps you will take to mitigate those risks, there is no need for these risks to be addressed in a separate risk assessment.

It is important to appreciate that “third parties” cover a very wide category of people – customers, clients, visitors to site, callers to call centres, hotel and restaurant guests, conference delegates, the general public and so on. Risks can also apply through online interactions as well as in person.

The Employment Rights Bill contains provisions that would mean that workers can bring a claim of harassment against their employer if they are harassed by a third party in the course of their employment and the employer has failed to take all reasonable steps to prevent the third-party harassment. This new claim will apply to all types of harassment, not just sexual harassment. According to the Government’s roadmap for implementing the Employment Rights Bill, this change is expected to come into force from October 2026. This means employers should be starting proactively to review and identify changes that may need to be made in order to mitigate the risk of claims.