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Not going all the way: Why the sexual harrassment cases that settle are just as interesting as those that don’t

There are over 3.5K sexual discrimination and harassment cases in the UK each year and almost two-thirds settle before the Employment Tribunal has had a chance to give its judgement.

Bloomberg recently analysed the complete public database of British sexual discrimination cases, which include everything from sexual assault at work to lower pay and opportunities for women, to uncover these unnerving statistics.

The fact that so many cases are settling should ring warning bells in boardrooms up and down the country. Let’s be honest, most bosses breathe a sigh of relief if a tribunal case is dropped or settled but there are very good reasons why a dropped sexual harassment case should prompt the opposite reaction.

Confidential settlements

In this #MeToo era, where Harvey Weinstein and Jeffrey Epstein have rarely been out of the headlines, employees are more aware than ever of what is and is not acceptable in the workplace. They also understand that some perpetrators will go to great lengths to protect their reputation. Confidential pay outs have silenced many victims over the decades and they continue to do so. As a consequence, theoretically there may be many victims in one workplace, each of whom thinks they are the only one. Settlement agreements often include confidentiality clauses as a condition for a pay cheque, further fuelling the subterfuge.

Secrecy and cover ups are still happening in companies large and small, up and down the country. What’s changing is public awareness. Victims who thought they were alone are now starting to realise that there could be a hidden pattern of behaviour and they are beginning to speak out.

The consequences for employers who have a hidden harasser are significant. Any form of discrimination in the workplace is bad for business and there should be a culture, from the  boardroom down, that encourages employees to report allegations.

What to do if an employee wants to drop their claim

Having reported an incident of sexual harassment, what should you do if the member of staff has a change of heart? Given the statistics outlined at the start of this article, any employer should be alert to the fact that this decision could have been prompted by fear or coercion. It is very important, therefore, to establish the reasons behind the decision to discontinue the claim.

It may be that the incident has genuinely been resolved. On the other hand, the complainant may be concerned about the potential consequences of such action on their job, relationships with colleagues and even home life.

If, as a responsible employer, you suspect the change of mind is for concerns the complainant may harbour, then it will be important to reassure your employee that confidentiality is very important and that it will be guarded, which will include reminding the accused of their obligations in terms of privacy. Your job will be to make sure your employee feels supported in their complaint of harassment.

Finally, if you are faced with an employee who is adamant about wanting to drop the allegations, what do you do? You have a duty of care to all your employees and will have to consider whether to investigate without the co-operation of the original accuser in order to safeguard other colleagues, particularly if the allegations involve physical assault, and to ensure that you fulfil any regulatory or compliance obligations.