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How should employers respond to sexual harassment complaints?
As the #MeToo Movement continues to cast a spotlight on allegations involving high-profile celebrities, it’s important to remember that sexual harassment isn’t a symptom of the entertainment industry but rather a pervasive issue affecting workplaces across all sectors. In fact, according to a recent poll conducted by the Trade Union Congress, 3 in 5 women say they have experienced harassment at work – rising to almost 2 in 3 women aged 25 to 34.
Despite this alarming statistic, recent amendments to the Worker Protection (Amendment of Equality Act 2010) Bill mean employers will not be held accountable for harassment of their employees by third parties, as originally proposed. The duty on employers to prevent sexual harassment has also been diluted, now requiring employers to take “reasonable steps” rather than “all reasonable steps”.
While there is currently no legal duty on employers to actively prevent workplace sexual harassment, unions, charities and women’s rights groups continue to push for legislation to close this gap in the law. This lack of legal impetus, campaigners say, has perpetuated a situation where abuse is often accepted as an unfortunate inevitability.
Even in the absence of such legislation, however, the Equality Act 2010 still holds employers vicariously liable for instances of discrimination, harassment, and victimisation perpetrated by their employees during the course of their work, unless they can demonstrate that they took reasonable steps to prevent such actions. It’s therefore imperative that employers take a resolute stance against any behaviour that crosses the line and are well-versed in preventing and addressing such incidents within their workplace.
So, how should employers respond when an employee comes forward to report potential misconduct?
What constitutes sexual harassment?
Sexual harassment takes many forms – some more blatant than others. In addition to unwanted physical contact, there are a number of behaviours that may also qualify as sexual harassment, including:
- Sexual “banter” or jokes about a colleague’s sex life;
- Asking intrusive sexual questions;
- Spreading sexual rumours;
- Making sexually offensive or suggestive gestures or facial expressions;
- Repeatedly asking a colleague out on a date or for sexual favours;
- Sharing inappropriate stories about sexual experiences;
- Following a colleague around or paying them excessive attention;
- Staring or leering;
- Sending emails of a sexual nature or sharing/displaying sexually explicit images; and
- Making insulting comments about someone’s gender identity or sexual orientation (or asking about someone’s sexual orientation).
It’s important to note that this isn’t an exhaustive list; sexual harassment is any unwanted conduct of a sexual nature which has the purpose or effect of violating someone’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
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How should you handle an employee's sexual harassment complaint?
When you are approached with an allegation of sexual harassment, you should:
Treat it seriously.
If an employee divulges that he or she is experiencing sexual harassment of any kind, you have a legal and ethical duty as an employer to investigate the charges thoroughly. You must not base your response or subsequent actions on whether you believe the employee’s allegations or feel that the complaint is justified; you must take him or her at their word and not impose your own views on the situation.
Speak to the complainant.
Get their account and keep minutes of the conversation.
Address the matter in line with your internal grievance procedure.
This is a fact-finding exercise to explore who witnessed the incident, get more information on what happened and provide recorded evidence of your investigation. This is vital as it will ensure that you are seen to be taking the matter seriously.
Provide an outcome to the grievance.
If the complaint is dismissed, you must give the complainant the opportunity to appeal the decision. If upheld, the next step will be to follow your organisation’s disciplinary procedure.
The way in which you resolve an issue will depend on the facts of the case, but options include an informal discussion, counselling, mediation or formal disciplinary procedures. Serious cases may result in dismissal for gross misconduct.
You should not:
- Brush it under the carpet.
- Downplay the concerns as just “banter”.
- Discuss the matter with anyone who does not need to know.
Crucially, don’t wait for the employee to come to you with a complaint if you suspect that sexual harassment may be occurring. If you hear rumours about potential misconduct or a non-involved employee comes forward regarding behaviour they have witnessed, you must investigate.
What happens if the employee brings a sexual harassment claim?
In sexual harassment claims, an Employment Tribunal will look at a number of factors when considering whether the act in question is a form of harassment, such as the employee’s perception, the circumstances of the case and whether or not it is reasonable for the actions to be deemed as harassment.
A recent harassment case has highlighted that of these considerations, the key question to ask is “could the comment or action be reasonably considered to have caused offence?” If the answer is no, then no sexual harassment has occurred.
What types of claim can be brought?
The Equality Act prohibits 3 types of harassment:
Sexual harassment
Sexual harassment. This is the most common type of harassment and involves unwanted conduct of a sexual nature that has the purpose or effect mentioned above. Examples would include making sexual innuendos, or inappropriate touching, hugging or kissing.
Sex-related harassment
This involves unwanted conduct related to a person’s sex (a protected characteristic under the Equality Act 2010). Examples would include antagonistic comments towards a female employee who has to leave work early due to childcare arrangements, or making sexist jokes or remarks.
Less favourable treatment
Treating a person less favourably based on them rejecting or submitting to sexual harassment or sex-related harassment is also unlawful. This would apply in circumstances where a person is denied promotion or victimised after rebuffing their boss’ sexual advances.
What happens if the employee brings a sexual harassment claim?
The most important point to take away is that anything that an employee does during the course of their employment will be deemed as having been also done by the employer, irrespective of whether the employer knew or approved the action or comment constituting sexual harassment. In other words, if an employee is found to have harassed a colleague, the employer will be held responsible.
To avoid this, you must be able to prove that you have taken reasonable steps to prevent these kinds of behaviours from occurring in your workplace.
This can be achieved in a number of ways:
- As a fundamental starting point, it is imperative to develop and promote a working environment where employees are encouraged to report any cases of sexual misconduct. TUC research has revealed that 4 out of 5 women do not report sexual harassment to their employer, often because of the well-founded fear of reprisal and further victimisation. Employees may be reluctant to come forward for many reasons; they may be embarrassed, worried they won’t be believed, concerned about office gossip and backlash, and/or fearful that their disclosure will negatively impact their career. It is therefore critical that employees trust that their concerns will be taken seriously and dealt with in a sensitive and confidential manner.
- Additionally, remind employees that it is their responsibility to ensure their behaviour doesn’t cause offence and that they must stop immediately if they are told that their actions are unwanted or offensive. Make it clear to employees that they need to be aware of the people around them and how their comments may be perceived by and negatively affect others. You should also make them aware that all allegations will be thoroughly investigated, and that disciplinary action will be taken when required.
- It’s always helpful to reinforce your stance on employee relations issues through documented policies and procedures. It’s a good idea to create a sexual harassment policy detailing what your standards and expectations are and outlining the process for reporting and dealing with complaints of this nature. This should be backed up by training for managers and supervisors on how to identify and handle concerning behaviour.
It’s important to note that workplace banter can be healthy; a relaxed, open environment can have a positive effect on morale, productivity and overall staff wellbeing. That said, witty remarks can very quickly cross the line into harassment and bullying. While it may appear harmless, a report by the Institute of Leadership and Management found that 4% of people have actually left a job due to negative banter, so it’s important to be clear about where the line is drawn to avoid the expensive consequences of what is often seen as just a bit of fun.
4 things employers need to know about workplace sexual harassment
For employers, there are four main sections of the Health and Safety at Work Act to be aware of.
Below is a Health and Safety Work Act summary of the duties employers owe to their employees and others that may be affected by their activities.
One-off instances
Sexual harassment typically involves a pattern of repeated, persistent behaviour; however, one-off occurrences can amount to sexual harassment too.
“Purpose or effect”
Based on the “purpose or effect” wording of section 26(4) of the Equality Act 2010, whether or not an act constitutes sexual harassment doesn’t just depend on the intentions of the person who committed the act; it also depends on how the act was perceived by the person affected. (However, in any case, whether the complainant’s response can be considered reasonable is the primary question for a Tribunal).
Who can claim
It is possible for a person to bring a claim even if the unwanted conduct wasn’t directed at them; it’s enough for someone to have overheard sex-related comments and found them offensive. For example, a man could bring a sex-related harassment claim if he was present when colleagues made sexist comments to a female employee.
Work events
Employers are liable not only for conduct that occurs within the workplace but also at work-related events. It’s therefore important to reiterate appropriate behaviours and remind employees of your organisation’s policy ahead of any parties or trips.
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Need specialist support?
When faced with any sexual harassment issue, taking advice at the earliest opportunity will help you to navigate the process and avoid legal pitfalls.
If you’re unsure how to respond to an employee’s complaint, suspect that harassment may be occurring within your workplace, or are facing a claim, speak to our experienced Employment Law specialists for step-by-step pragmatic guidance.
We can also expertly draft your organisation’s code of conduct, grievance procedure, and bullying and harassment procedure to provide a framework for managing issues of this nature and enable you to demonstrate your commitment to creating a safe and positive working environment for all.
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