Sanctions

Most disciplinary procedures list sexual harassment among the offences capable of amounting to gross misconduct resulting in summary dismissal. However, the fact that misconduct amounting to sexual harassment has been established does not always mean that summary dismissal must necessarily follow. The employer’s response must be within the “band of reasonable responses”, taking into account all the circumstances, including the seriousness of the misconduct and the existence of any live formal warnings.

Possible arguments in mitigation to try to avoid a dismissal for gross misconduct could include:

• any apology;

• any evidence of having learned from the experience and willingness to change e.g. willingness to volunteer for relevant training;

• relevant personal circumstances, for example, stress, ill-health, relationship problems;

• lack of a clear policy;

• lack of training;

• treating other workers differently; and

• availability of other sanctions (for example, demotion or disciplinary transfer) and if this is the case, the member’s willingness to accept these. It is a good idea to tell the employer the worker’s position on this and get it recorded in the minutes.

Where a member accused of sexual harassment has been exonerated, their union rep can play an important role helping him or her to reintegrate into the workplace, including accessing any available support services (including mental health) and skills refreshing if necessary. Any adjustments to working patterns (for example, staffing arrangements) should be based on the member’s agreement.