Following the recent revelations in the celebrity and political world we have seen more attention on this problem. A BBC Radio 5 survey found that 52 percent of the participants experienced sexual harassment in the workplace, showing how widespread this issue is.
Several high profile individuals have recently emerged as victims or perpetrators of sexual harassment in the workplace. In light of this we want to raise awareness of what employers’ responsibilities are and what procedures should be followed.
The Equality Act 2010 states sexual harassment occurs where both:
- A person (A) engages in unwanted conduct of a sexual nature.
- The conduct has the purpose or effect of either violating another person’s (B) dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B.
- Beyond this, the individual’s perception, all circumstances of the case and whether it was reasonable for the conduct to have that effect is considered.
As this topic gets more attention, justifying this behaviour as ‘banter’ is rapidly becoming unacceptable.
Under The Equality Act 2010 where harassment happens in the course of employment it is treated as being done by the employer regardless of the employer’s involvement or knowledge.
Undoubtedly harassment which takes place during work hours at the work location will come within the course of employment. But there are some grey areas as to what constitutes the course of employment. The line becomes blurred with conduct off the premises and out of normal working hours, particularly at social gatherings.
Where this behaviour does occur in the course of employment there is a defence available to an employer who can show they have taken “all reasonable steps” to prevent the employee from doing the harassment.
This can include:
- having an equal opportunities policy with an anti-harassment and anti-bullying policy
- reviewing those policies regularly
- educating all employees on the policies
- providing managers training on preventing sexual harassment
- taking steps to deal with any complaints effectively and sensitively.
If you receive a complaint
You should appoint a person who has no prior involvement in the complaint to conduct an investigation.
Hold a meeting so the employee who raised the compliant can provide their version of events. They should be informed that they can be accompanied to this meeting by a colleague or trade union representative. Practically speaking, consider if this employee’s working arrangements should be changed during the investigation. Having these discussions and accommodating appropriately helps with tackling any complaint.
Depending on the circumstances, the accused employee may need to be suspended on full pay or work from home. But at some point meet with this employee to hear their version of events. Make sure they are aware of their right to be accompanied as well.
All witnesses to any incidents/allegations will need to be interviewed. Emphasise the importance of confidentiality to them.
A report should be written at the end of the investigation and given to a senior manager to deal with the complaint. Discuss with the employee the outcome of their complaint, again the employee should be offered a companion to the meeting.
Based on the outcome of the investigation, take any necessary and appropriate action under your disciplinary procedure. If the complaint is not upheld then steps will need to be taken to best manage the ongoing working relationship.
You must offer either party which is not satisfied with the outcome of the investigation the opportunity to appeal.
Employers should embody an inclusive culture which discourages this behaviour. Even with a zero tolerance culture, unfortunately you can’t control the actions of individuals. If this behaviour does happen, support those who come forward with dignity and respect.
Helen Lucas is an employment law solicitor at Royds Withy King in Swindon