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Sexual Harassment in the Workplace - how can employers prevent employees from being subject to unwanted conduct?

Unless you have been living under a rock these past few weeks, you will be aware of the media coverage on sexual harassment in the workplace in light of the allegations made against Harvey Weinstein. More than 50 women so far have made allegations against Harvey Weinstein and the number is still rising.

Research published last year and conducted by the Trades Union Congress (TUC) in conjunction with the Everyday Sexism Project illustrates the extent of sexual harassment in modern workplaces; more than half (52%) of all women polled by TUC are reported to have experienced some form of sexual harassment. 

The Equality Act 2010 (“EA”) defines sexual harassment as ‘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’.

It is important to note that a one off act can amount to harassment even if an employee has put up with a joke previously.  Further, whilst some of the more common forms of sexual harassment might be physical, such as touching for example, harassment can also include verbal acts e.g. making a joke of a sexual nature and dismissing it as ‘just a bit of banter’, and also non verbal acts e.g. displaying sexually explicit images.  

In deciding whether a particular act has that effect, a tribunal will take into account both the perception of the person complaining but also whether it is reasonable or not for the conduct to have had that impact.  For example, where an employee complains that his colleague’s comments had the effect of humiliating her (although this was not A's purpose), the tribunal must consider whether it was reasonable for the conduct to have that effect. If it was reasonable then it will amount to harassment.

Employers have a duty to stop employees from being harassed at work. This duty may also extend to include conduct which takes place outside work at work-related events for example at the work Christmas party. Recent statistics reveal that the majority of employment-related harassment claims concern unwanted treatment meted out by employees to their colleagues. It is now widely reported that victims of sexual harassment often find it difficult to come forward to speak out about their treatment.  Unsurprisingly the TUC research reveals that 80% of employees did not report their treatment to their employers and of those that did many said that no action was taken by the employers.

Perhaps in recognition of the difficulties faced by individuals in responding to acts of harassment, the legislation provides that if you do submit to the conduct (e.g. kiss a colleague following a request from them to do so because you felt pressured or intimidated), then you are not allowed to be treated less favourably than if you did not submit to the conduct i.e. if you had refused the kiss.

It is important that employer’s appreciate that they can be vicariously liable for harassment in certain circumstances because, the legislation is clear in that anything done by an employee in the course of their employment is treated as having also been done by the employer. Fortunately for employers there is a defence available to an employer if it can show that it took “all reasonable steps” to prevent the employee from doing the discriminatory act or from doing anything of that description.  

Practical Steps for Employers

What will amount to reasonable steps will depend on the particular facts of a case but there are a number of practical and proactive steps that we recommend should be taken by employers to (i) prevent harassment in the first place and (ii) to bolster their chance of successfully demonstrating that they took all reasonable steps, in the event a harassment claim is brought. 

Many employers already have a disciplinary and grievance procedure and one recommendation is to introduce a separate Equality and Diversity policy to compliment an existing disciplinary and grievance procedure.  This should typically include a statement of commitment from management that harassment is unlawful and will not be tolerated. The policy should also set out examples of what will amount to harassment and unacceptable behaviour and how an employee can go about raising their concerns with their employer without fear of reprisal.  Finally, it should clarify that bullying and harassment will be treated as a disciplinary matter.

Separate to providing the policy, it is critical that employers provide training both for new staff as part of an induction but also to existing staff particularly those with management responsibility for other employees so that they understand fully what is expected and what the policy provides. If there are developments to the policy then in addition to notifying staff of the changes to the policy ideally staff should be provided with refresher training so as to keep their knowledge and understanding of the policy current.

When handling complaints an employer should always ensure that complaints are handled both sensitively and where possible confidentially.  In some cases it may be possible to rectify matters informally. Sometimes an individual is simply not aware that his or her behaviour is unwelcome and an informal discussion can lead to a greater understanding and an agreement that the behaviour will cease.

It may be that the individual will choose to do this themselves, or they may need support from personnel, a manager, an employee representative, or a counsellor.

In both large and small organisations, mediation can play a vital role in resolving workplace disputes include those about harassment, by providing a confidential avenue for an informal approach and perhaps an opportunity to resolve the complaint without need for more formal action.

For more advice or information on this topic, contact our employment team by using the form or calling 0345-872-6666. 

With thanks to Loretta Woollams who kindly contributed to this blog. Find our more about our team here.