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Dealing with allegations of workplace sexual harassment, part 1

ANALYSIS: According to the Trades Union Congress (TUC), over 50% of workplaces have an issue with sexual harassment – a figure that, sadly, will come as no surprise to anybody who has been following the news in recent weeks.09 Nov 2017

But despite these findings, and the fact that sexual harassment is unlawful under the 2010 Equality Act, it is rare for these cases to be escalated to an employment tribunal. While this disparity could reflect effective internal confidential grievance or harassment processes which address these issues, many of the stories that have emerged recently share a common thread of victims fearing the personal and professional repercussions of reporting their experiences.

What is clear is that employers cannot simply pay lip service to a hastily-drawn up 'zero tolerance' policy. Rather, they must focus on creating a culture in which abuses of power, from which such harassment often flows, are not tolerated, and on showing that any complaints will be dealt with confidentially, effectively and sensitively, on both the side of the accuser and the accused. The law is not some high-handed arbiter of political correctness, but rather a framework in which every employee should be treated with respect and dignity by their employers and fellow employees.

What is sexual harassment?

Harassment is unwanted behaviour which is either intended to, or has the effect of, violating an employee's dignity or creating a hostile environment. Importantly, this means that the effect of the unwanted behaviour need not be intentional in order to be considered harassment. To be considered sexual harassment, the harassment must either be related to sex or be of a sexual nature.

Harassment is a form of discrimination under the 2010 Equality Act, which means that an employee who is harassed has the right to take action through the employment tribunals and civil courts. It can happen on its own, or alongside other forms of discrimination. Abusive comments or jokes, whether spoken or written, inappropriate touching, images and graffiti, facial expressions or insulting gestures are all examples of behaviour which may constitute harassment.

An employee being treated less favourably at work such as not being promoted, because of their reaction to sexual harassment is itself harassment under the Equality Act. This is the case whether the person treating the employee less favourably is the person who originally did the harassing, or somebody else.

It is worth re-stating that it is usually the perception of the victim that is relevant, rather than the intention of the harasser. In circumstances where the harassment is unintended, and the case proceeds to tribunal, there is a process by which the tribunal will make an assessment of whether the victim's perception is, in fact, reasonable. This assessment does not apply where the harassment is intended.

How should employers address harassment issues?

Every employer must put in place a clear, transparent and confidential process for dealing with claims of sexual harassment. This process must be easily accessible and be applied consistently, regardless of the level or popularity of the alleged harasser.

Confidentiality and fairness to both the accused and the accuser is essential. Allegations should be dealt with swiftly, but not without giving those accused the opportunity to respond to or refute them. HR must support both parties while investigation is ongoing. An employer could find itself in difficulty, or even being sued from a duty of care perspective, if vague and possibly unfounded allegations are made by one employee against another without thorough, independent investigation.

Going beyond the handling of individual complaints and the bringing to life of anti harassment policies, conscientious employers should consider what they are doing to empower members of staff with 'protected' characteristics. Younger female employees are often more vulnerable to "power plays" so they must be empowered to push back on inappropriate behaviour through dignity at work policies. This can help employers too, as being able to demonstrate that they have taken steps to create an environment which is hostile to harassing behaviours not only supports their employees but may allow them to transfer responsibility to the individual perpetrators if claims are brought.

'Tone from the top' is important here. An environment in which leaders, male and female, treat people with dignity and respect and act immediately to stamp out inappropriate behaviour will have a huge impact given the link between power and harassing behaviours. Ultimately, however, empowering the female and minority employees of tomorrow to speak out against harassment should start even earlier, at school age, and our schools have a responsibility for this.

The widespread condemnation with which recent reports of historic sexual harassment have been met may yet signal the start of a cultural shift.  This, coupled with adequate training and a workplace environment in which those in positions of power are held accountable for their actions, should make the workplace a safer environment and see a material reduction in the TUC statistic.

Part 2 of this feature will deal with how to approach allegations of historic workplace sexual harassment.

Diane Nicol is an employment law expert at Pinsent Masons, the law firm behind Out-Law.com. 

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