Sexual harassment in the workplace is far from being a new phenomenon. But with recent high profile allegations putting the issue at the top of the news agenda employers should be asking themselves whether they are doing enough to protect their own employees from sexual harassment in the workplace.
Why should employers tackle sexual harassment?
If ignored or handled badly, workplace harassment can leave organisations with serious problems, including poor morale and disengagement, reduced performance, absence, resignations and a lack of respect for management.
What is more, as most employers know, sexual harassment in the workplace is unlawful. Those who are on the receiving end can be awarded compensation by an employment tribunal, which in some cases can run to hundreds of thousands of pounds. Claims can be made not only against the perpetrator but also against their employer: as a general rule, employers are liable for harassment by their own employees unless they can show they did as much as they reasonably could to prevent that kind of behaviour.
Allegations of harassment can also damage an organisation’s reputation. Tribunal claims are heard in public and judgments are published online for all to read. The media will often show a keen interest in sexual harassment claims in particular, which can lead to harmful, not to mention embarrassing, press coverage.
What is sexual harassment?
The concept of sexual harassment in the Equality Act covers a broad spectrum of behaviour. The definition encompasses any unwanted conduct of a sexual nature which has the purpose or effect of violating a worker’s dignity or otherwise creating an intimidating, hostile, degrading, humiliating or offensive environment for them. It can also be sexual harassment to treat someone less favourably for rejecting, or submitting to, unwelcome sexual advances or other sexual behaviour.
A common reaction of those accused of harassment is to say they didn’t mean any harm or that it was just ‘banter’ or ‘harmless flirting’. However, it is the effect of the behaviour that is key. That said, in determining whether or not sexual harassment has taken place a tribunal would consider not only the perception of the recipient of the harassment but also whether it was reasonable for the conduct to be seen as harassment. As such if a recipient is particularly sensitive but a reasonable person would not have taken a particular form of conduct to amount to harassment then it is unlikely to satisfy the legal definition.
What should employers do to prevent harassment?
At the very least, an employer should have in place an Equality and Diversity or Dignity at Work Policy that covers all forms of discrimination with a specific section covering sexual harassment. Such policies should include examples of what may be considered sexual harassment to help employees understand where the boundaries of acceptable behaviour lie. The policy should be regularly updated to take into account changes in legislation and best practice.
It is important that employees are left in no doubt that harassment will not be tolerated. The policy should make it clear that harassment will be treated as misconduct and could result in the perpetrator being dismissed without notice in appropriate cases. It is also useful to remind employees that they personally (and not just the employer) can be liable for acts of harassment in the workplace.
In addition, employers would be well advised to provide training and updates to its employees on its Equality and Diversity and Dignity at Work Policies so that employee are well aware of what is and what is not acceptable behaviour in the workplace.
What if an employee feels they have been sexually harassed at work?
Employees need to know what they can do if they feel someone is behaving inappropriately towards them so that those who are subjected to sexual harassment can be confident that their complaints or concerns will be taken seriously and considered objectively, however senior the alleged perpetrator may be. Again, this should be spelled out in the Equality and Diversity or Dignity at Work policy.
Ordinarily, a policy will suggest that the first step would be for the employee to raise any concerns with their line manager or, if their complaint is about their manager, with another senior manager. Often, though, individuals may prefer not to discuss matters with their line manager, such as where allegations raise matters that the individual feels are highly personal or sensitive, or where the alleged perpetrator is someone in a senior position. For this reason, many organisations also have equality champions who are trained to provide support and guidance and deal with such issues on a confidential and sensitive basis.
Taking action
Employers should investigate complaints of sexual (or any other kind of harassment) fairly, promptly and confidentially. A failure to investigate a complaint could in itself result in the employer being exposed to a claim. Once the investigation is completed, if it shows that there is a case to answer then a disciplinary hearing should be called to give the alleged perpetrator the opportunity to answer the allegations against them. They should be given a fair hearing and have the right to be accompanied at the disciplinary hearing by a work colleague or a trade union official.
The role of the internal disciplinary process is to consider “on a balance of probabilities” whether sexual harassment has taken place and if the allegations are well founded, to take appropriate disciplinary action and to put in place reasonable steps to prevent further harassment or discrimination. In a serious case this could result in summary dismissal for gross misconduct and in a less serious case a warning and possibly additional training for the perpetrator.
Further action
Where harassment has been identified, it is always sensible for employers to reflect on their own policies and workplace practices to see if wider improvements can be made.
Ultimately, the employer’s aim should be to create a culture in which everyone knows that sexual harassment is not welcome or tolerated and feels able to speak out about behaviour they consider inappropriate.
Author: Simon Rice-Birchall, Partner and Head of Equality Law at international law firm Eversheds-Sutherland