01.09.2023
International controversy around the recent conduct of Luis Rubiales (President of the Royal Spanish Football Federation, RFEF) during the medal ceremony of the Women's World Cup final has led to huge public outcry and sparked debate around issues relating to consent and what constitutes inappropriate conduct in a professional setting.
In light of the fallout from this event, we consider how HR should respond to allegations of sexual harassment where the alleged perpetrator disputes the complainant’s version of events, the difficulties that may arise where the alleged perpetrator is very senior, and how to implement a zero-tolerance approach to harassment in your business.
The unsolicited kiss
As the Spanish national women’s football team collected their medals at the celebrations in Sydney on 20 August, Rubiales kissed Spanish national star Jenni Hermoso on the lips.
Shortly after, Hermoso posted on a live stream that she “did not like [the kiss]” and later released a statement via the Spanish football players’ union making clear that “at no time” did she consent. She also stated that she considered Rubiales’ conduct to be an “act of aggression”. Rubiales disputes her version of events, repeatedly stating that the kiss was consensual and refusing to resign from his post as president of the RFEF, hitting out against the "social assassination” of his character.
The backlash against Rubiales has been significant. At the time of writing, FIFA (the International Association Football Federation) have provisionally suspended Rubiales from any football-related activity for 90 days and a criminal investigation has been launched by the Spanish Prosecutor’s Office into whether Rubiales’ actions amounted to a crime of sexual assault. In addition, the Spanish Government has started legal proceedings seeking to remove Rubiales from his post after he refused to resign.
What HR can learn from this
The fallout from this event is ongoing, and it remains to be seen how the issues will be resolved. In the meantime, we consider some lessons that HR can take from these events.
My word against yours
One thing that stands out about the exchange between Rubiales and Hermoso is that it was caught on camera and witnessed by millions across the world. The existence of video footage from various angles leaves limited scope for doubt as to what happened. This will not be the case in the vast majority of incidents of alleged sexual harassment at work. More often than not, HR may be tasked with investigating an alleged incident in respect of which there are no witnesses at all, besides the victim and alleged perpetrator. In effect, it will be a case of one employee’s word against another’s.
In such a scenario, it is important for HR to bear in mind the following points:
- You have duties to both the victim and the alleged perpetrator, including the duty of trust and confidence and a duty to ensure a safe working environment.
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You must undertake a thorough investigation. Senior managers and HR need to know how to handle investigations and grievance and disciplinary processes sensitively in line with the Acas Code of Practice on disciplinary and grievance procedures, as well as the EHRC guidance on sexual harassment and harassment at work, and internal company policies. Ideally, the person in charge of investigating an allegation of sexual harassment should have received specialist training on how to conduct such investigations.
- There can be a tendency, in cases of alleged sexual harassment, to disbelieve the victim (as in Hermoso’s case, with the RFEF having initially expressed its support for Rubiales and threatened to sue Hermoso). However, in practice it is rare for an employee to simply make up allegations of sexual harassment. The investigator must listen carefully and openly to both parties and form their own view as to what is most likely to have happened.
- In order to take disciplinary action against, or dismiss, an employee who has been accused of sexual harassment, you don’t need to have proof of their guilt that meets the criminal “beyond reasonable doubt” standard. It is enough for you to be satisfied “on the balance of probabilities” that sexual harassment occurred.
- Disciplining or dismissing an accused employee too readily may put you at risk of a claim of constructive or actual unfair dismissal. However, provided you have conducted a reasonable investigation and followed a fair process, you should be able to defend your decision in the event of a tribunal claim. On the other hand, failing to take action because you are not absolutely certain that the events took place as alleged may give rise to the risk of a claim from the victim, and can potentially leave a harasser free to harass other employees in the future.
Senior individuals in the spotlight
The incident between Rubiales and Hermoso also highlights the difficulties that can arise where the perpetrator of alleged sexual harassment is in a senior position compared to the victim. In many cases, the victim may simply not report harassment by a more senior colleague, perhaps because they do not believe that the employer will take action, or even because they are concerned about the potential consequences for their own employment if they make a complaint.
Where an incident is reported, it may be difficult to decide who should undertake the investigation and who has authority to take disciplinary action if the alleged perpetrator is very senior. It will be important to ensure that, if an internal investigation is undertaken, the investigator has access to advice and support. And in some cases, it may be more appropriate to appoint an independent, external third party to conduct any investigation.
There may also be concerns that disciplining or dismissing a very senior individual could lead to reputational damage to the business if the underlying events become public knowledge. However, in practice, the impact on the business’ reputation could be worse if it is discovered that you were aware of sexual harassment by a senior staff member and did nothing about it.
Taking a zero-tolerance approach
The incident between Rubiales and Hermoso has been characterised as Spain’s “#MeToo” moment and has highlighted wider issues with the culture within Spanish football, which demonstrate the importance of employers taking steps to implement a zero-tolerance approach to harassment.
It is vital that staff feel able to raise concerns about any inappropriate conduct and have confidence that any allegations will be handled fairly, regardless of the status of the alleged perpetrator. In order to achieve this, you should ensure that your policies set out a robust procedure for how your organisation will respond to any complaints that are raised, and make clear to staff that your organisation has a zero-tolerance approach to all forms of harassment. As with any policy, it must be effectively communicated to staff and be properly implemented in practice.
In addition, you should provide anti-harassment training to all staff. Thorough training on what constitutes sexual harassment and how to report inappropriate behaviour that they have experienced, or witnessed, can be a key method of prevention. It can also help to establish the right kind of working culture, especially if staff are given a “safe space” during such training sessions to share their experiences and what they consider inappropriate conduct. Additional training for managers, to help them spot when someone may be experiencing harassment and understand how to investigate allegations properly and how to support the individuals involved, is equally important.
For further information see our earlier e-alerts on Tackling sexual harassment at work: five key HR action points and Tackling the thorny issue of inappropriate conduct.
How we can help
Make UK offers a package of support aimed at preventing sexual harassment at work, including a template Anti-bullying and harassment policy (including guidance notes), staff surveys (Pulse surveys) and anti-harassment training for staff (micro-awareness video and/or half day workshop). For further details click here, or contact Nicola Kibble - [email protected].
Our HR consultants are very experienced in assisting companies with investigation processes, either in a supporting role or running the process as an independent investigator. If you need assistance with conducting an investigation into allegations of sexual harassment and would like to find out how we can help you, contact Nicola Kibble - [email protected].
If you are a Make UK subscriber, you can speak to your regular adviser for guidance on managing internal investigations, including taking disciplinary action that may be needed as a result. You can also access further information about harassment and bullying, including template policies and drafting guidance, in the HR & Legal Resources section of our website.
If you are not a Make UK subscriber, our expert HR and legal advisers can offer guidance on a consultancy basis. For further information, contact us on 0808 168 5874 or email [email protected].
We also offer an end-to-end suite of support to inform, engage and embed the right culture, values and inclusive working environment within your organisation. Ranging from our suite of micro videos (see here) and support with drafting policies and procedures to leadership visioning and strategy workshops with our leadership coaches - click here to find out more.