Recent publicity has brought the thorny issue of workplace sexual harassment to the fore. Business owners and HR departments might be concerned that media attention and the #MeToo campaign will lead to more sexual harassment complaints. Is there anything they can do to protect the business?
It is important to remember that an employer can be “vicariously liable” for sexual harassment by its staff whether or not they knew about or condoned that harassment unless they took “all reasonable steps” to prevent it. This would include sexual harassment taking place outside the workplace provided that it was connected with it, for example at a Christmas Party, away day or work trip.
Those steps should begin by understanding what constitutes sexual harassment. The Equality Act 2010 contains a specific definition: it outlaws unwanted conduct that is related to sex or of a sexual nature and has either the purpose or effect of violating the complainant’s dignity or creating an intimidating, hostile, degrading, humiliating, or otherwise offensive environment for the him/her. Treating a complainant less favourably because he/she has submitted to or rejected such conduct is also outlawed.
It’s important to realise that a complainant doesn’t need to show that the perpetrator intended to intimidate, degrade, humiliate or offend him/her, just that their behaviour had that effect. In deciding this, a Tribunal must look at the complainant’s perception, the circumstances and whether it is reasonable for the conduct to have that effect. So an “innocent” joke, comment or action could be found to be sexual harassment if, in the circumstances, a reasonable person in the complainant’s position would be humiliated or offended, but an over-sensitive recipient might not succeed in a sexual harassment claim even if their feelings are genuine.
Examples of sexual harassment could be
- Sexist “jokes”
- Discussions about appearance, sex or sexual “banter” amongst colleagues
- Displaying pornographic images, leaving them for a colleague to see or sending them electronically
- Inappropriately touching a colleague – context is everything here: a European kiss on the cheek would be treated very differently to a “wandering hand”
- Treating a colleague less favourably after he/she has declined an invitation for a date
- Suggesting promotion or advancement in the company would be determined by sexual favours
As a bare minimum, the employer’s policies and procedures should make clear that sexual harassment will not be tolerated and could constitute gross misconduct leading to dismissal. There should be a clear route to make complaints about sexual harassment, for example through a Grievance Procedure.
Employers should consider a specific Anti-Harassment Policy, giving examples of the sort of behaviour that will not be tolerated and sanctions for non-compliance. You might want to include a complaints procedure separate to the usual Grievance Procedure, ensuring that those investigating these complaints have had training about how to deal with them.
It’s no use having a policy if you don’t promote it: make sure that anti-harassment policies are publicised to all staff. Make it part of the induction procedure and send periodic reminders, particularly before events such as a Christmas Party.
Ensure that managers and HR receive training about sexual harassment: what it is, how to spot it and what to do if they witness it or receive a sexual harassment complaint. Consider also training all staff about sexual harassment: role plays can provide insight as to how one person’s joke or banter can humiliate or offend another.
Be proactive: if a manager or HR witness sexual harassment or receive a complaint “in confidence” or anonymously, take steps to ensure that it is investigated and the perpetrator is disciplined if harassment is found to have taken place.
Take complaints seriously: whatever your instincts, don’t be defensive. Investigate sensitively, keeping matters as confidential as possible whilst interviewing any possible witnesses. Remember that the “word” of the complainant is “evidence”; if there really are two differing accounts with no witnesses, the investigator should be asked to decide who they believe. A perpetrator will be unlikely to successfully claim unfair dismissal if the employer concludes that sexual harassment has taken place after a reasonable investigation.
Louise Taft has over 15 years’ experience of Employment Tribunal claims for harassment and can help you draft policies and procedures to deal with sexual harassment, provide training about sexual harassment, coach you through a grievance or disciplinary procedure or sexual harassment complaint, carry out an investigation into a sexual harassment complaint, negotiate settlements with staff or represent you in an Employment Tribunal claim. Contact her on 020 7935 3522 or firstname.lastname@example.org
Whatever your personal circumstances the above is only a guide and we would advise you to contact us to obtain definitive advice as you will appreciate that each person’s circumstances are unique to them.