1. Addressing Sexual Harassment in the Media and Creative Industries

2. How allegations are reported
Allegations come in a number of guises
Formal
Informal
On the basis that they are ‘off the record’
Written
Spoken
Office gossip

3. How allegations are reported
Allegations come from a number of sources
reports by complainants
reports by a third party, eg colleagues and peers of the complainant or alleged perpetrator
reports by multiple complainants, current and former staff members
reports by those external to the business

4. You should always investigate
Businesses that are serious about addressing such complaints should formally investigate when issues are raised
This is not an area where off the record or informal discussions are going to be helpful in the long term
It is important for complainants, alleged perpetrators and the business that findings are made

5. You should always investigate
Investigations can be conducted internally, but…
can raise a number of conflict issues for those investigating and the parties involved
are businesses resourced sufficiently to investigate serious, potentially criminal allegations?
are those raising allegations and the business best served by an internal investigation?

6. You should always investigate
An investigation led by an external investigator should be considered
Suitably qualified highly experienced investigators assist in dealing with any concerns that the investigation is a sham
This approach would also mitigate any concern or complaint that the complexities and intricacies of the complaint have not been understood and therefore investigated properly

7. You should always investigate
Should you use the same investigator in the case of multiple complaints?
What process do you use for ex-staff members?
Is the historical nature of the complaint a bar to investigation?
Do you investigate every complaint?
Who decides whether something is serious enough to be investigated?

8. Complexities No supporting evidence either way
Allegations and counter allegations
Allegations made in the context of a disciplinary or performance management process
Historical allegations
Allegations which potentially involve a crime

9. Complexities
Does the business have an obligation to report allegations to law enforcement agencies?
What next if you are unable to make clear cut findings?
How do you deal with complaints that are perceived to be malicious?

10. Complexities in the media sector
Often high profile nature of one or more of the protagonists, complainant, perpetrator or employing entity
This places the matter under increased scrutiny
High profile social media accounts and access to media can ensure these matters are in the public domain very quickly and before the business has had time to act

11. Complexities in the media sector
If the matter is in the public domain it can be frustrating for the employing entity (in whichever sector) as they cannot, for a variety of reasons and good governance, respond fully to allegations being made

12. NDAs
In the employment context these primarily take the form of confidentiality provisions in settlement agreements
It has been documented that some employers are using these as a condition of employment (The Presidents Club dinner)
NDAs are appropriate to protect proprietary rights not to cover up potential future wrongdoing

13. NDAs/confidentiality provisions
Are these appropriate to use in the case of past wrongdoing?
Direction of travel is that the answer to this is ‘No’
Businesses will now have to reconsider how they deal with complainants, perpetrators and the aftermath of any complaint

14. NDAs/confidentiality provisions
It is unlikely that attempts to silence or bring an early close to complaints without investigation will be protected by confidentiality provisions in the future
Lawyers have been warned that they must keep this in mind when advising clients
SRA presented this as a reminder of existing duties but for many it serves as a warning

15. NDAs/confidentiality provisions
Any confidentiality provisions in a settlement agreement should always be accompanied by a provision which explicitly states that nothing in the agreement should prevent the individual from whistleblowing
Often confidentiality provisions are accompanied by some kind of repayment provision

16. NDAs/confidentiality provisions
Even so, if the individual signs up to a confidentiality provision and then breaches it, there may be a number of reasons why a business would choose not to enforce confidentiality after the fact