Sexual Harassment in the Workplace
Sexual harassment in the workplace is being scrutinised like never before. With an on-going influx of revelations involving several high profile individuals’ conduct being called into question, and the global outpouring of personal experiences being filed under the #MeToo, the focus on this is intense, and for good reason.
A BBC survey conducted in late 2017, revealed that two in five British women have experienced unwanted sexual behaviour at work, and only a quarter of them reported it. Reasons for not reporting the harassment ranged from fear of not being taken seriously; embarrassment; and fear of losing their job/credibility. And it’s not just women - a fifth of men reported experiencing harassment in the workplace too.
The poll involved over 6,000 men and women and found those working on flexible contracts were more likely to suffer harassment. This includes people on zero hours contracts; self-employed contractors; and those working in the gig economy.
But what is ‘sexual harassment’ and how does it happen in the workplace?
Sexual harassment is unwanted conduct of a sexual nature. The legal definition is that it has the ‘purpose or effect of violating the dignity of a worker, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them’.
The harassment can be verbal or non-verbal and can include sexual comments or jokes; unwanted physical contact such as touching or hugging; any form of sexual assault; displaying sexual images; or being treated less favourably as a result of rejecting any such conduct.
It can happen to anyone at any time and any place; from the same sex or the opposite sex. The harasser can be a more senior person, a colleague in the same department; or a third party client or customer.
Harassment can be a sufficiently serious one-off incident, or a serious of incidents; and just because the alleged harasser doesn’t intend to ‘harass’ another person, does not mean harassment did not occur.
All workers are protected from sexual harassment in the workplace by the Equality Act 2010. This Act covers several ‘protected characteristics’ including disability, age, sexual orientation, gender reassignment, race/colour/nationality; religion and belief, and sex. Sexual harassment comes under the latter – sex discrimination. The protection can also extend from employment law to criminal law, especially where sexual assault or physical threats occur.
Dealing with harassment:
Organisations generally tackle harassment cases in one of two ways. Anyone who feels they have been sexually harassed; or feels they have seen sexual harassment take place, can ask the person to stop. This less formal intervention can have the effect of making the alleged harasser aware of how their conduct has affected the other person and can often be enough to close the matter down.
If this does not work, or where the employee is not comfortable talking to the person directly, they would make a formal complaint in line with company policy. If the company has a specific ‘Dignity at Work Policy’ or ‘Harassment Policy’, this should be used; otherwise the employee can follow the Grievance Procedure, which all companies must have.
The employee would need to set out the harassment that has taken place and by whom and this is sent to the named individual in the Grievance Procedure – usually the line manager/HR, or a more senior manager, if the complaint is against the line manager.
The employee would then be invited to a formal meeting so that the Grievance Manager can discuss the complaint in more detail. The employee could be accompanied by a TU representative or work colleague, although some organisations do allow a family member or friend to support the employee but this is purely discretionary.
To support the process, it is very useful for the employee to have some notes of the harassment (when it happened, witnesses, location) as this can help the Grievance Manager understand what and who needs to be investigated. All witnesses, including the alleged harasser, would be interviewed and the notes clearly documented. The employee would be kept updated with progress, and formally advised in writing of the outcome and their right to appeal.
Where the employer agrees with the allegations, disciplinary action should follow and this can mean action up to, and often including, dismissal for the harasser.
Other considerations during the process:
Where you have two people in a team or who work closely together, and one raises a complaint against the other, the employer may need to consider suspending the alleged harasser – but this should never be a ‘knee jerk’ reaction to the allegations. If the seriousness of allegations is such or where keeping the alleged harasser on site could prevent a fair and reasonable investigation taking place, suspension could be an option, but this should be as short a time as possible, and not be seen as the final outcome of the grievance. The employer could also consider temporary reallocation of duties or temporary changes in working hours, to keep the parties separate.
What if the employee doesn’t want to make a formal complaint but is alleging serious sexual harassment? In this case, the employer has a duty of care to continue with an investigation based on the information the employee is willing to provide. Not doing so could be a breach of the implied contractual term of trust and confidence, which can be raised in court later on.
Companies also need to be careful how the employee who raised the complaint is treated after the complaint has been dealt with. If that person is treated less favourably as a result of the complaint, they could claim victimisation (another form of discrimination) at court too!
Taking it further – onto the Employment Tribunal:
Unfortunately, not all employers go through a full and thorough process when faced with sexual harassment complaints; and sometimes the employee making the complaint feels their situation has not been dealt with at all!
In these instances, the employee can go to an employment tribunal (the employment equivalent of a criminal court) and claim for discrimination on the grounds of sexual harassment. The claim needs to be raised within three months of when the last discriminatory act/harassment took place, and logged with the Advisory, Conciliatory and Arbitration Service (ACAS) so that mediation can be attempted with the employer. If this works, the claim will not get to the tribunal and will be either withdrawn by the employee or settled – a pay out by the employer outside court.
Where ACAS mediation fails, the claim then progresses through to the employment tribunal for processing and action. The employer will appoint their legal representatives, and the employee will usually appoint their own; various deadlines for actions have to be met, and eventually there is a day/several days in court, where the employee and alleged harasser/employee ‘witnesses’ are examined and cross-examined by the tribunal judge and the other sides’ solicitors, before the judge arrives at his/her decision. The key for the judge is whether a ‘reasonable person’ would be offended by the behaviour in question.
If the employee wins, they usually ask for compensation rather than their old job back and the judge decides what the compensation package looks like. There is no maximum payout for discrimination claims (although the judge does work to a formula) so in short, if this is a serious case of harassment which has been ignored or mismanaged by the employer, there could be a significant payout attached. Not to mention the management/HR time spent prepping the case; legal fees; impact on staff; company reputation for the employer.
Having said all this, and as detailed earlier, most victims of sexual harassment don’t report it – often the harassment is carried out by powerful individuals away from company premises and potential witnesses.
So what can companies do to tackle this issue?
Some bigger organisations provide independent ‘whistleblowing’ lines for staff to report harassment where they can’t report it to management or HR inside the company. The independent companies then stream this information to the ‘most appropriate’ people inside the business so action can be taken.
The Equality and Human Rights Commission (EHRC) has undertaken extensive research into sexual harassment in the UK and published comprehensive recommendations. One such point is for the Government to develop an online reporting tool, making it easier for victims of sexual harassment to report incidents in a timely and confidential manner, thereby allowing a more accurate picture to emerge.
That said, providing a mechanism for reporting harassment is one thing; if the employee has the courage to do this, the company’s response is vitally important. Instead of tackling the alleged harasser, quite often, companies ‘buy’ the silence of the victim through payouts and enforced ‘gagging’ clauses. This means the truth about the number and seriousness of cases is never truly known.
The EHRC is recommending the Government introduce legislation making any non-disclosure or settlement agreement clauses around sexual harassment (or discrimination in general) void.
The big thing to tackle is company culture – everyone, from the Board Directors down should ‘want’ to keep all staff safe from any kind of harm, including harassment of any kind. If leaders don’t listen or take claims of harassment seriously, nothing will get done, regardless of the processes in place. Part of the culture change comes from the gender balance. If the most senior or powerful roles are male, it’s easier for a ‘boys club’ to exist. That’s not to suggest that women should be appointed into senior posts for the sake of it, but it is important to appoint the right people with the right skills, regardless of gender into these posts.
Achieving such a culture goes back to having robust policies in place that clearly state commitment to promoting dignity and respect for all at work. Managers and staff should be trained to understand their responsibilities to make this policy ‘real’ and the consequences of not adhering to it. Setting such standards starts with employee inductions and should be gently reinforced throughout employment.
In short, there is a lot that organisations can do to tackle sexual harassment in the workplace – it won’t get sorted overnight, but it does need to get sorted!
If you are looking for advice and support with anything covered here, get in touch with the employment relations experts at Workplace Law.