Sexual Harassment has been in the news with the publication of new Equality and Human Rights Commission guidance on managing workplace harassment as well as the news hitting the headlines from across the Atlantic this week.
Sexual harassment, and harassment generally, is not acceptable in today’s modern workplaces, although, as reports in the press make clear, there are some for whom the wind of change has not yet blown. Emma O’Connor considers recent guidance and asks how can employers prevent sexual harassment in their workplaces.
The global phenomenon of #MeToo empowered both women and men to speak up about inappropriate conduct and sexual harassment which they had experienced at work. Despite sexual harassment in the workplace being prohibited for many years through legislation, it is still an issue for employers.The publication of the recent Equality and Human Rights Commission (EHRC) guidance on managing and preventing workplace harassment is a timely reminder that there is still a way to go in educating our managers and leaders about their responsibilities, stressing the “wanted behaviours” in our people and giving those who want to come forward with a clear and unhindered pathway.
The Impact of Workplace Harassment
For employers, there is a balance. Employers need to take action to prevent incidents of harassment occurring and to protect the health, safety and wellbeing of their staff whilst ensuring that they are able to demonstrate to an employment tribunal that they have in place a strong anti-tolerance culture with robust processes and procedures to protect against this type of behaviour. Claims of discrimination, particularly harassment by an employee, or group of employees, against another employee are damaging to an employer’s business and reputation. A quick internet search can bring up the good and bad associated with the employer’s “brand”. Harassment affects morale, causes employees to leave and inevitably leads to a loss of productivity and knowledge.
There is a human cost as well. Victim’s careers can be destroyed as well as the impact on health and wellbeing.
Sometimes when faced with a clear and obvious case of harassment the only sensible answer is to resolve the dispute as quickly and amicably as possible and to limit the damage that is ultimately done; however, but that does not resolve the core problem.
Employers will never be able to prevent employees behaving badly, or in ways that are not acceptable. The law recognises the difficulty faced by employers. It does not require that an employer prevent acts of sexual harassment, or other types of harassment, what the employer has to do is demonstrate that it “took all reasonable steps to prevent the employee from doing that thing or from doing anything of that description”.
Taking all “Reasonable Steps”
With the EHRC guidance in mind, employers should…
Have a robust, clear and widely understood policy in place as the starting point. Ensure that employees know where to find the policy too.
Also make sure your policies are joined up – e.g. equality, harassment, social media, email/internet, disciplinary, grievance – are they all speaking with one voice?
Ensure that all employees – especially your managers - have received training on what is and is not acceptable behaviour, including an understanding of the legal risks and responsibilities.
The training should be kept up to date and repeated on a regular basis for all employees – we suggest annually. A record should be kept of the specific training and who attended.
Ensure that managers and all staff behave in accordance with the standards expected. Develop the culture of intolerance and openness.
Set the consequences out - if necessary disciplinary action should be taken to ensure standards of behaviour are maintained. Warn of dismissal.
Employees should have access to a hotline or pathway to raise concerns they have confidentially and also know that their concerns will be taken seriously by their employer.
If you shine a light on your workplace, its culture/attitudes and training record, could your organisation defend a harassment claim?
Call to Action
Nothing can ever be perfect. All an employer can do is its best to ensure that its employees work in an environment that is free from harassment. This is also not about creating stale working environments, it is still ok to enjoy where you work! However, ensuring that your people behave appropriately, you have robust policies, there is a heightened awareness of the issues/risks and training is part and parcel of working for you are all part of the “package” to combat harassment and provide employees with a safe working environment.
Employers are not alone and there is much that can be done to protect their business.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.
If you have any questions relating to this article or need further information on how Boyes Turner’s Employment Group can assist in your harassment “Call to Action”, please contact the Emma O’Connor on [email protected]