What can employers learn from the recent spate of sexual harassment claims in the workplace?
Hardly a day has gone by in recent weeks without a headline about sexual harassment, be it in Hollywood or Westminster. Recent research confirms that one in five women allege to have experienced some form of sexual harassment whilst at work.
With this seemingly rapid increase in sexual harassment claims, and in the run up to the Christmas party season which often sees a rise in the number of allegations reported, we consider below what sexual harassment in the workplace might entail and the steps employers should take to minimise the risk and consequences of such claims.
What is sexual harassment?
Sex is a protected characteristic under the Equality Act 2010. Sexual harassment is a form of sex discrimination and is deemed to occur where somebody engages in unwanted conduct of a sexual nature that has the purpose or effect of violating a person's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them. In the workplace this could include, for example, derogatory comments or jokes about sex or gender, touching or other unwelcome sexual advances, displaying pictures or objects with sexual overtones or sending e-mails which include material of a sexual nature.
In certain workplaces, there may be a view that “banter” is usual and inoffensive but this is often an area which can lead to sexual harassment claims. Whilst some people may find certain “banter” amusing, others may find it offensive. Tribunals will rarely be sympathetic towards accused harassers where their defence is that they were simply engaging in “banter”.
It is not necessary for someone to have previously made it clear that they find certain behaviour unacceptable for it to be deemed to constitute sexual harassment and a one-off incident alone can amount to harassment. Note that it is possible for employees who have not directly been on the receiving end of the unwanted conduct to bring a claim for sexual harassment as a result of its negative impact on the working environment.
In the majority of cases, acts of sexual harassment are committed by colleagues. An employer has a duty of care to protect staff from unlawful discrimination and will be vicariously liable for the conduct of its employees. In certain circumstances, an employer may also be liable for acts of sexual harassment committed by third parties (such as its customers or contractors). Given that there is no cap on compensation in successful discrimination claims, these types of claims can be extremely expensive for employers. An employer will have a defence to such claims if it can show that it took all reasonable steps to prevent such conduct from taking place.
Legal consequences aside, allegations of sexual harassment can be particularly damaging for businesses: they can cause significant reputational damage, undermine confidence and dramatically reduce workplace morale.
What steps should you take as an employer to prevent sexual harassment at work?
1. Have a clear anti-bullying and harassment policy in place which sets out what constitutes unacceptable behaviour and which all staff are familiar with. This policy needs to be readily accessible to all.
2. Staff should undergo training on equal opportunities and anti-bullying and harassment on a regular basis to ensure they understand exactly what can constitute harassment. Appropriate training is also good evidence of your attempts to take preventative action and may act as a defence to a discrimination claim against the business.
3. Create a culture of respect and dignity and make it clear that unacceptable behaviour will not be tolerated. This should also help to encourage the reporting of such incidents by members of staff when they occur.
4. Ensure employees understand the mechanisms in place for reporting such incidents. This will most likely be by way of them raising a grievance in accordance with the grievance procedure.
5. Employees should be supported throughout this process (for example, their working environment should be reviewed and monitored) and they should be made aware that they will not be subjected to any detriment as a result of them having submitted a grievance against another staff member. Employees involved in dealing with such complaints should receive appropriate training on how to deal with them seriously and promptly.
6. You should be swift and consistent in your approach to dealing with any such complaints. Inconsistency in dealing with these issues could leave the business vulnerable to claims in the Employment Tribunal for discrimination and potentially constructive unfair dismissal.
7. Ensure that appropriate disciplinary action is taken against the perpetrators where warranted. In some cases, this may result in employment being terminated for gross misconduct. In the most serious of cases, matters may also need to be referred to the police.
These steps can minimise the risk of staff being subjected to acts of sexual harassment in the workplace. They can also ensure that where such acts do take place, they are dealt with properly and appropriately, thereby helping to protect your business.