11 June 2018

Ending sexual harassment in the workplace

Last year, over 80 allegations were made against Hollywood film producer Harvey Weinstein. This was closely followed by allegations made against Defence Secretary Michael Fallon who was subsequently forced to resign. More recently, the incidents of sexual harassment reported at the charitable dinner held by the Presidents Club led to its disbanding.

These well-publicised scandals have started a conversation around sexual harassment and have facilitated widespread social media campaigns such as #MeToo and #TimesUp. These are all promising signs of change, but employers need to take action. 

According to a survey conducted by the Trades Union Congress, more than half (52 per cent) of women reported experiencing sexual harassment at work. Under the Equality Act 2010, employers are liable for acts of sexual harassment by one employee against another unless they have taken all reasonable steps to prevent it.

The Equality and Human Rights Commission (EHRC) has recently published guidance –‘Turning the tables: ending sexual harassment at work’. In this, the EHRC states that an anti-harassment policy and appropriate procedures for reporting harassment should be the minimum requirement. However, this may not be enough. In Smith v Renrod [2015], the Employment Appeal Tribunal stated that “simply referring to training and policies is not sufficient”.  Employers need to consider their working culture and actively address behaviours and attitudes, taking prompt and appropriate action in response to complaints.

What is sexual harassment?

S26(2) of the Equality Act 2010 defines sexual harassment as occurring where:

  • One person (A) engages in unwanted conduct of a sexual nature, and
  • The conduct has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for another person (B).

The harasser need not intend their actions to offend, intimidate, etc.  A claim can arise if that is the effect of their actions.  

Sexual harassment claims are dealt with in the same way as any other discrimination claim. The process will usually begin with an employee bringing an informal or formal grievance. If the complaint isn’t resolved at this stage, the employee will need to contact ACAS and participate in the pre-claim conciliation process before a formal claim can be issued in the Employment Tribunal.  Employers should deal with such complaints promptly and efficiently at an early stage to avoid legal proceedings.

According to research conducted by the EHRC, the most common perpetrator of sexual harassment was a senior colleague. Often, this power imbalance means two things: (i) victims are reluctant to report any incidents of sexual harassment in the first place; and (ii) these senior individuals are less likely to be challenged by HR departments when allegations are brought against them. 

Tackling sexual harassment

An anonymous reporting system can empower sexual harassment victims to report incidents. Whether a complaint is made anonymously or not, and irrespective of the seniority or status of the alleged harasser, employers must take all claims of sexual harassment seriously.

Sexual harassment allegations can have a devastating effect on a company’s reputation. It may be tempting for employers to stamp out the allegation rather than investigating and dealing with the alleged harasser. However, if the allegations are later found to be true, this can result in a PR nightmare which might have been avoided if the correct action was taken at the outset.  

The allegations should be investigated promptly. Depending on the individuals involved in the complaint, it may be sensible to engage an independent investigator who can review the complaint objectively and without fear of upsetting the balance of power within the business. 

A thorough investigation will determine whether there is evidence to support the allegations.  Note that it is not necessary to prove that there has been sexual harassment, but the employer does need to reasonably believe that the complaint has foundation. If they are satisfied that there is a case to answer, the formal disciplinary process should be followed. Sexual harassment is likely to amount to gross misconduct and must never be condoned, but each situation will be different and the level of disciplinary penalty should be considered carefully.

Preventing sexual harassment

In modern businesses, sexual harassment should not arise. The publicity surrounding the recent high profile campaigns can be used as an opportunity for employers to reinforce their anti-harassment and bullying policies and a zero tolerance attitude towards discrimination of any kind, including sexual harassment.  

Educating line managers and staff to understand how their behaviour can amount to discrimination is an extremely valuable tool, particularly where harassment scenarios are used. It is impossible to change a company’s culture overnight, but education, reinforcement and appropriate action will all push the message home that sexual harassment is unacceptable and will lead to serious repercussions.  

As recent events have demonstrated, businesses need to do more to prevent sexual harassment from occurring and, where it does arise, they should have appropriate procedures to effectively deal with the issue.

This article does not constitute legal advice. Specific legal advice should be taken before acting on any of the issues covered.

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