No more bystanders: Dealing with sexual harassment in the workplace

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Q  I am a partner in a firm of accountants. We have around 50 members of staff. I have heard rumours circulating around the office that a female secretary has been complaining that one of the senior managers made very personal comments about the size of her breasts. In light of all of the recent media surrounding sexual harassment I want to ensure that my firm is not seen to be tolerating such behaviour. What steps should I take?

This is our answer:

Sadly sexual harassment in the workplace is a common issue faced by employers.  As you rightly point out, the recent aftermath of the sexual assault claims in Hollywood and the #MeToo campaign have brought back to the front pages the issue of sexual harassment. While this is a problem that has always existed, it is only now that the true extent and scale of the issue is being fully appreciated.

The Trades Union Congress (TUC) published research last year in which 52% of women surveyed stated that they had experienced some form of sexual harassment at work.  Having an understanding of what to do if the issue arises is important, but perhaps more critical is to put in place appropriate policies to prevent sexual harassment establishing itself as an accepted culture in your workplace.

Definition

Before looking at your question it would be helpful to have a clear understanding of the legal definition of sexual harassment.

Sexual harassment is defined in the Equality Act 2010 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 stress that something can be considered sexual harassment even if the alleged attacker didn’t intend for it to be and it also doesn’t have to be intentionally directed at a specific person.  It is also important to note that you don’t need to have previously objected to someone’s behaviour for it to be considered unwanted.

Sexual harassment can include suggestive comments or jokes, physical behaviour including unwelcome sexual advances, touching and various forms of sexual assault, sending emails with sexual content, displaying pictures, photos or drawings of a sexual nature.

Perhaps most significantly in the circumstances of the example set out in your question, conduct can be words alone and there does not have to be a physical element to it. Therefore any sort of personal comments made by your senior manager concerning his secretary’s breasts would certainly be considered to be sexual harassment.

There may have been a time when comments of this nature were endured by female employees and shrugged off as mere ‘office banter’. This is no longer the case and your senior manager’s behaviour, if true, is serious.  The secretary may not have made a formal complaint at present as she might be afraid to speak out against someone in a position of seniority and potentially risk her job. This is common and, as a result, victims of sexual harassment often find it easier to just go along with ‘banter’ for fear of speaking out.

Employers’ liability

As an employer you have a duty to protect your employees from harassment of this nature.  This is not just a moral and ethical duty – it is also a legal duty. Employers can be held responsible for their employees’ actions under the principle of ‘vicarious liability.’

Accordingly an employer will be legally responsible for any discrimination carried out by a member of staff against another provided that the action is carried out in the course of employment (S109 Equality Act 2010). This is regardless of whether the employer knew or approved of the unlawful act. However, it is a defence for the employer to show that they ‘took all reasonable steps’ to prevent the member of staff from doing that thing or from doing anything of that description.

It is sensible to take preventative action; the employer must have taken reasonable steps before the act of harassment occurred.

These reasonable steps will usually include:-

  • Making all your employees aware of your company’s policies and their implications;
  • Training managers and supervisors in equal opportunities and harassment issues;
  • Taking steps to deal effectively with complaints, including taking appropriate disciplinary action.

In Caspersz v Ministry of Defence UKEAT/0599/05, a sexual harassment case, it was held that the existence of a ‘dignity at work policy’ that complied with the European Commission’s Recommendation together with evidence that the employer had followed the procedures set out in the policy was considered sufficient to establish the reasonable steps defence.

What to do

Assuming you have an anti-bullying/harassment policy and a complaint procedure in place, you will need to establish the facts. As a partner you have a duty to protect your employees from sexual harassment. While in this case we do not know all of the facts, even rumours of such behaviour need to be addressed and not brushed under the carpet for fear of embarrassing conversations.

Whilst this is a difficult issue for you to address with your senior manager, you do need to take immediate steps to establish what is being alleged. You should therefore discreetly and sensitively speak to the secretary in question, explain the reason for the discussion and remind her that the conversation will be as confidential as possible; she may be too scared to come forward to any of the partners herself and so may welcome being approached in this way.  If she confirms the complaint then swift action should be taken in accordance with your firm’s policy.

It is important that the employee’s complaints are taken seriously, regardless of the status of who they have been made against.  Otherwise other employees may be inhibited from coming forward if they are in a similar position. This is not a culture you want to promote in your workplace. Dealing with personal issues of this nature is always going to be difficult and uncomfortable, but that is not a good reason to simply ignore them.

Going forward

On a practical level simply having a policy in place does not automatically mean that you as an employer will escape liability for the acts of your employees.

As a firm you should consider what you can do going forward to establish a zero tolerance policy on sexual harassment. Here are a number of practical steps your company can take:-

  • Your company should ensure it has appropriate anti-bullying /harassment and complaints policies in place. Be clear – sexual harassment will not be tolerated under any circumstances.
  • Ensure all your employees are well aware that these policies exist – they should be aware and understand the process for the investigation of any complaints. Ensure that your policy is easy to understand for all employees and that it is easily accessible to everyone.
  • Your company should put in place regular training so that these policies are reinforced and familiar to all of your employees.
  • All of your employees should be aware of how they can report any inappropriate behaviour.
  • Your company’s policy should make provision for different ways to report a complaint. For example, it is no good to require that complaints are always made to the line manager if that person is the very subject of the complaint.

In the event that a sexual harassment complaint is made against the senior manager or in the event of any other complaint that may arise in the future then your company should try and take the following steps:-

  • Your company should ensure an investigation takes place swiftly and in line with the company policies.
  • Ensure that that all parties know that all complaints will be dealt with sensitively. Be sympathetic and handle difficult conversations on a human level. Listen carefully and take a note. Ensure all the facts are recorded (dates and times in particular).
  • Your company should consider making support available to any person who has made a complaint. This may include making adjustments to how or where they work. So in this case, the secretary could be assigned to work for another manager if this is possible.
  • Confidentiality is important, as it will then encourage those who might be too frightened to come forward. Although it is not always possible to give an absolute assurance on confidentially in sexual harassment cases, you must be clear in any investigation with an employee as to what they can expect. It is crucial to impress on everyone involved that matters must be kept confidential and that any form of victimisation or retaliation will not be tolerated.
  • You should consider if disciplinary action is required and, if so, this should be taken swiftly where appropriate.
  • Your company should consider reporting the matter to the police. Currently sexual harassment in the workplace is not a specific criminal offence, however, there are criminal offences of sexual assault or harassment, which should be reported.

Conclusion

As an employer you need to be prepared to deal with this issue head-on. Have appropriate policies in place and ensure everyone is well aware of their existence.  Taking a bystander role is never acceptable. Failing to deal with sexual harassment in the workplace is not only letting your employees down on a human level but it is also, in short, bad for business. It can lead to a working environment entrenched in fear and lacking trust and morale, which overall will have a negative impact on productivity and lead to a high staff turnover and an increase in absences.

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OGR Stock Denton
Posted in Employment Law Update.