Recent headlines and last nights black dress protest at the Golden Globes have shattered any illusions that sexual harassment in the workplace had become a thing of the past. The ongoing media coverage of allegations made against high-profile business figures may now lead to an increase in complaints made by others who have encountered inappropriate behaviour of a sexual nature while at work.
Emma Thompson, employment law specialist at Thackray Williams explains how employers should deal with this difficult and sensitive area.
What is sexual harassment?
Under the Equalities Act 2010, sexual harassment is defined as unwanted conduct related to someone’s sex, or which is of a sexual nature, and which creates an intimidating, hostile, degrading, humiliating or offensive environment. It may involve colleagues looking at sexually explicit content at work, uninvited physical contact, making sexual comments or emailing sexual jokes.
Responding to concerns about sexual harassment
Employers can be liable for one employee’s sexual harassment of another employee, even where they were unaware that it was happening. Therefore, any suggestion that sexual harassment may be occurring, or has occurred in the past, needs to be taken very seriously. Do not wait for a formal grievance to be raised – even the mere mention of concerns to a manager should put you on notice of a potential problem.
The employee may feel embarrassed and worried about not being believed or the potential consequences of raising a grievance. Although the employee cannot be forced to pursue an official complaint, an employer’s failure to act could be risky: vicarious liability for any sexual harassment claims, potential further harassment of other staff, loss of talent and reputational damage are all possible consequences.
The employee should be offered support and reassurances that any concerns will be dealt with appropriately and confidentially. Many employers have a bullying and harassment policy with specific commitments on supporting employees raising allegations of harassment. You and all of your managers need to be familiar with your policy.
Consider suspending the alleged perpetrator
If the allegations are serious, consider whether the alleged perpetrator should be suspended from work. Even where the allegations are less serious, the complainant may feel uncomfortable continuing to work with the person they have raised concerns about. You may consider changing their working arrangements to minimise contact between the employees during the investigation. This needs to be done carefully to ensure neither employee feels victimised or that the outcome of the investigation has been pre-judged.
Investigating the allegations and wider issues
As with any grievance, investigate the allegations promptly. The investigator should be careful before reaching any judgments about whether the complainant is being ‘over sensitive’. As explained above, conduct may be regarded as sexual harassment where it has the purpose or effect of violating the complainant’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. When determining whether the conduct complained about meets this criterion, an employment tribunal will consider the complainant’s perception, the surrounding circumstances and whether the conduct could reasonably have that effect.
Look out for any wider issues, which may need to be addressed. For example, might colleagues be turning a blind eye to inappropriate behaviour due to a perpetrator’s seniority or status as a joker or star employee?
If the allegations relate to incidences some time ago, think about and question why the complainant has felt unable to raise concerns until now. Is it possible that other employees have similar concerns as the complainant?
Avoiding and defending harassment claims
Employers may wish to be proactive and challenge the workplace culture. This is with a view to both creating an environment in which staff are more likely to come forward with concerns, as well as discouraging harassment from occurring in the first place. This might involve tightening up standards of behaviour, such as tackling bawdy banter.
Now may be the time to introduce or relaunch your bullying and harassment policy and to remind employees of your zero-tolerance approach. It is worth checking that appropriate staff training has been delivered. These steps should help create a positive working environment as well as establishing that you have taken reasonable steps to prevent workplace harassment, which can be used to defend harassment claims in the employment tribunal.
For a confidential discussion about dealing with sexual harassment or other sensitive grievances, or indeed for employment-related issues generally, please contact Emma.