Two bites of the apple- limitation in professional negligence cases
A recent study carried out by the charity Rights of Women found that a quarter of women suffering sexual harassment at work said the misconduct was exacerbated during last year’s lockdown – almost half said the sexual harassment was now taking place remotely.
Examples included: a manager using a WhatsApp group set up for work purposes to obtain personal contact details, and then using that number to harass the individual privately; taking screenshots during online meetings, sharing these with colleagues and making inappropriate comments; using phallic emojis and offering to send pictures. Women told of how they felt unsafe letting colleagues into their bedrooms via video meetings.
Victims also indicated they are finding it much harder to seek justice. Around seven in 10 said their employer is not doing enough to protect them from harassment and three in 10 said that the pandemic had negatively impacted their employer’s response.
As well as the toll this will be taking on the individual, these statistics should be a real concern for employers. We know that complaints of sexual harassment can lead to loss of productivity, high staff turnover, costly settlements, expensive litigation and reputational damage.
The risk to the business remains the same whether the harassment is in person or remote. If anything, it may be higher because it is so much easier to evidence online misbehaviour, by using screenshots, voice recordings, text messages or emails.
Sexual harassment and harassment related to a protected characteristic remain prohibited by the Equality Act 2010, and such conduct therefore risks claims for discrimination, constructive dismissal and/or even personal injury for psychological damage. There can also be significant regulatory consequences for employers.
Businesses therefore need to navigate the same employment issues as before even if, in many ways, it is more difficult now in practice. The challenge for HR and line managers in identifying and addressing misconduct is amplified with remote working, meaning that issues may go unaddressed until a much later stage, potentially when the stakes have become much higher.
As a minimum HR should ensure the following:
If a complaint is received, it should be handled sensitively, promptly and thoroughly. HR will need to consider how best to follow a formal process in light of the working conditions at the relevant time. It may be appropriate for investigations, grievance meetings and disciplinary hearings to be held remotely so as to avoid delay. This must be considered for each case, alongside other factors such as whether any key individuals are on furlough.
HR professionals should be mindful that a virtual process will mean it is harder to ensure confidentiality, and it is easier for these meetings to be covertly recorded. It is best to operate on the basis that this is the case, and behave accordingly.
Kirsty Churm is a Senior Associate in the Employment Department. She advises both employers and senior employees on all aspects of employment law and employee relations issues, including contentious and non-contentious matters.
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