Employers have a legal duty to protect the health, safety and welfare of their employees, so far as is reasonable practicable.
The question arises as to whether and to what extent an employer can take action in respect of a revenge porn allegation relating to actions that have taken place outside of the workplace.
If the alleged perpetrator’s actions are considered to potentially threaten the reputation of the business and/or damage relationships with colleagues or the employer, this could be sufficient cause to commence an investigation and disciplinary process.
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Employers can suspend an alleged perpetrator in order to allow for a full investigation to be carried out, provided that there is reasonable and proper cause to do so.
Whether there is reasonable cause to suspend is likely to involve an initial investigation into the facts, but the investigation does not have to be completed or substantially completed before actioning the suspension.
If the alleged perpetrator and victim share the same workspace, there is likely to be sufficient reason to suspend, in order to protect the wellbeing of the victim.
If the victim isn’t in the workplace, suspension may still be appropriate if the alleged perpetrator’s presence at work could impact the wellbeing of other employees.
Alternatively, the employer may consider that not suspending the alleged perpetrator but moving them to a different office or location would achieve the same aim of protecting the victim and other employees at work.
While it is likely going to be necessary to suspend, this should still be considered in each individual circumstance and the reasoning for the chosen course of action appropriately documented.
In terms of the legality of suspending, employers will need to see if there is a contractual right to suspend and should clearly inform the alleged perpetrator of the reasons for suspending. Employees should continue to receive normal pay during the period of suspension unless the contract provides that suspension can be unpaid. Employers should also aim to keep the period of suspension as short as possible.
Providing victims with support should be paramount in light of the employer’s legal responsibilities to protect the safety of employees at work. Employers could offer support internally, or refer the victim and/or anyone else impacted to an external support organisation.
Other ways to support the victim could include offering time off work or providing the ability to work from home while the investigation is ongoing. It is now a sexual offence under the Criminal Justice and Courts Act 2015 to disclose a private sexual photograph or film without the consent of an individual who appears in the footage and with the intention of causing them distress.
Employers could remind the victim of their ability to report this to the police but should not pressure them to do so.
Stephen Moore, is partner and head of employment at Ashfords
