Sexual Harassment: Guidance for employers

What steps should employers take to prevent sexual harassment in the workplace? And how should employers deal with any complaints that have been made?

Recent events and the subsequent #metoo campaign have played a part in helping to uncover the widespread abuse which has been, and continues to be, endured by many women. Although the shocking scale of this problem only seems to have been truly appreciated very recently in the media, previous surveys had already hinted at the extent of the problem. For example, the Trades Union Congress had already published research last year in which 52% of women stated that they had experienced some form of sexual harassment. However, the recent level of attention the problem of sexual harassment has received  does seem something of a pivotal moment in tackling the issue.

Clearly this is a societal problem. However, it is also obvious that the workplace plays a huge part in sustaining this culture. Over eighty percent of women surveyed by TUC stated that their experience of sexual harassment had taken place on work premises. A significant number also reported that such behaviour had taken place during work related events, such as Christmas parties. There can be no denying the fact that this is a significant workplace problem which needs to be tackled by employers.

The obligation upon employers to take active steps to prevent sexual harassment is not just a moral one, but a legal one. Under the Equality Act 2010 sexual harassment is deemed to occur where:

• one person engages in unwanted conduct of a sexual nature; and
• this conduct has the effect of either violating the dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for another person.

This comprises a broad array of behaviour. Unacceptable conduct can consist of the use of words alone and does not need to be accompanied by more physical actions. Tribunals will also rarely be sympathetic towards accused harassers where their defence is that they were simply engaging in “banter”. Victims may only be going along with “banter” to the extent that they feel they have to and it can be very hard for someone to speak up against such a culture in a male dominated industry. Individuals should also be aware that it is not necessary for someone to have previously made it clear that they find behaviour unacceptable in order for behaviour to be deemed as harassment.

Although employees should clearly be concerned to ensure they are not acting unacceptably (since they can be found personally liable), employers can also be held responsible for their employees’ actions due to the principle of ‘vicarious liability’. All employers would be well advised to take reasonable steps to prevent such behaviour in the first place and also to deal with it adequately where complaints are made that harassment has taken place.

An employer should ensure:

• It fosters a culture whereby reporting of incidents is encouraged.
• Staff are educated as to what constitutes harassment.
• There are suitable anti-harassment and bullying policies in place.
• All employees are familiar with such policies and also undergo relevant training, such as diversity, unconscious bias and equal opportunities training.
• There are clear mechanisms in place for employees to report unacceptable behaviour and that employees are made expressly aware of this. This would include making employees aware of grievance and whistleblowing procedures.
• HR managers are comfortable with the processes they need to follow in dealing with any complaints so that such complaints are dealt with seriously, consistently and promptly.
• Where any complaint has been made, that steps are taken to properly investigate.
• That any person who has made a complaint is properly supported throughout the process, including appropriately managing their work environment during any investigation.
• It acts in line with its own employment policies and processes.
• It takes appropriate disciplinary action against the accused where this is warranted.
• It considers whether this is a matter which needs to be referred to the police.

Overall, recent accounts show the extent to which this unacceptable behaviour has been allowed to subsist via a culture of intimidation. Employers need to play a key part in reversing this trend by making it clear that not only have they taken steps to foster an environment supportive of dignity and respect, but also one of openness whereby victims are not fearful of being penalised for coming forward.