In October 2017, the #metoo movement started to dominate both social and mainstream media, causing the downfall of many prominent figures in the sectors of politics and entertainment amongst others. Over the year since then, it has led to a huge change in the visibility of sexual harassment in the workplace and employers have been left scrambling to keep up with the current of public opinion. Those seen to be enabling or concealing inappropriate sexual conduct have found themselves the target of often hostile publicity and may have experienced financial detriment as a consequence.
What is sexual harassment?
Sexual harassment is defined as “unwanted conduct of a sexual nature which has the purpose or effect of violating a person’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person”.
There are many ways in which sexual harassment may occur, including:
Written/verbal remarks about a person
Questions about sexual history or current sex life
Comments on appearance
Displaying pornographic images or videos
Inappropriate photographs or videos of employee or employee’s partner
Unsolicited physical contact or touching
Arm around shoulders
Kissing (even on cheek)
Inappropriate touching of buttocks, legs or chest
This may amount to a criminal matter
Call 999 if you or someone you work with is in immediate danger, or if the crime is in progress
An employment case/internal investigation should still be carried out
Less favourable treatment harassment is when an individual suffers a detriment because they have rejected or submitted to unwanted conduct of a sexual nature. A worker should not be treated less favourably because they have made a sexual harassment complaint. This may lead to victimisation, where a person is placed at a disadvantage or punished in some way – such as not getting a job promotion because they have reported a sexual harassment incident.
A person may make a sexual harassment complaint about an incident that has occurred to them, or about an event they have witnessed happening to a colleague. Sexual harassment can happen to anyone, at any time or place. Workers can be harassed by someone of the same or opposite sex. A person may feel harassed by someone on their team, a supervisor or manager, another member of staff, the owner of a company or a client (such as a customer at a bar).
Although the employer may have a general grievance policy in place, it may be useful to have a separate, adequate sexual harassment policy in place for workers.
The policy should set out:
the scope of the policy and who it applies to;
company or business rules on sexual harassment;
the procedure for reporting sexual harassment;
disciplinary action against those carrying out such harassment;
the responsibilities of the HR team.
The employer may wish to have another policy in place for workers who experience sexual harassment from clients or third parties.
It may also be worth considering the drafting and implementation of a Relationships at Work policy that would cover the consequences of the breakdown of relationships between colleagues and the effect that this would have if that breakdown turned acrimonious.
How to handle complaints
All sexual harassment complaints should be taken seriously and handled with sensitivity. A person who has suffered sexual harassment may be distressed and emotional, so it is important for an employer (or HR employee) to take suitable steps to make reporting the matter less stressful.
The best procedure may be to conduct the meeting in private, so the matter is confidential. The employee’s meetings or work engagements may need to be rearranged to allow adequate time to relay the events and their feelings. The employee may need some time off from work to emotionally heal, so it should be determined prior to the meeting whether this would count as their annual leave or whether the employee should be given paid or unpaid compassionate leave.
It is important to note that a worker accused of sexual harassment may also be distressed and in need of support. Even though a fair and thorough investigation into the sexual harassment will need to be carried out, the accused worker should also be treated with compassion and sensitivity.
It’s vital that all employees in a business know the definition of acceptable behaviour. That means that employers need to educate their staff through training and information programmes. Training for managers and HR departments on how to handle complaints of harassment is essential and should include the way to carry out an investigation of harassment allegations.
Allegations of harassment can have very serious consequences for businesses, particularly in terms of their reputation. An employer who does not help and protect their staff when faced with claims of harassment will find that it is very hard to limit the reach of those claims. Social media can ensure that such allegations reach an audience of millions and it’s highly likely that, having “gone viral” on social media, the mainstream media will pick up the matter.
On 1st November 2018, a worldwide walkout occurred at the offices of Google, in protest about sexual harassment in the tech company and the way that its culture is perceived to have condoned and facilitated this. This attracted huge media interest as well as trending on social media and has put Google’s work culture and its attitude to harassment under the spotlight.
What happens next
It doesn’t look like this issue is going to go away any time soon. The #metoo campaign has become a global phenomenon and this has given other victims of harassment the confidence to speak out about their experiences.
Adopting a defensive strategy and continuing with existing policies and practices in the face of a sea change in social attitudes is not an option for employers.
If the perception spreads that an employer isn’t providing protection and support to staff, the business won’t be seen as an attractive place to work and the employer will find it difficult to recruit or retain the best employees.
It can be seen that protecting employees against harassment is as much a business issue as a legal one.
The Equality and Human Rights Commission has published a report, ‘Turning the tables: ending sexual harassment at work’ recommending several changes to the law to protect victims of sexual harassment at work. Employers may find this useful to read to see what best practices and workplace cultures they can incorporate into their businesses or companies.
rradarstation: rradarstation is a resource available through the AXA MLP policy where policyholders can access rradar’s legal advisory team over the phone or by email and web portal that provides over 1000 articles, step by step guidance sheets, forms, sample letters and templates to download relating to running a commercial business including employment law issues such as sexual harassment and grievance procedures.