How best to handle an allegation of sexual harassment in a company

Last year was a year of headlines for women’s rights with the Time’s Up and #MeToo movements shining the spotlight on inequality and abuse around the world.

With the focus firmly on equality, what are the main issues for women in the workplace? Where has progress been made and what still needs to be done? Emma O’Leary, employment law consultant for the ELAS Group, takes a look at some of the key issues:

In theory the law is there – the Equality Act tells us it’s unlawful to discriminate on the grounds of a protected characteristic, directly, indirectly, to harass or to victimise. Harassment is prohibited conduct, on the grounds of any protected characteristic but in addition specifically (section 26 (2)) of the Equality Act covers unwanted conduct of a sexual nature. An employer has a general duty of care to it’s employees and the law guides us as to the specific duties such as this.  The employer cannot defend a claim of discrimination and harassment if it cannot demonstrate that it took reasonable steps to prevent it.  So all employers should be aware of their obligations and have the necessary policies in place for equality and diversity, harassment, grievance procedures and disciplinary.

So why do statistics tell us that 50% of all women surveyed have experienced sexual harassment in the work place? [side note that men are also victims of sexual harassment and by no means do I wish to undermine that but the focus of today’s discussion is female]  In my own opinion but based on my experience of advising clients on these matters, it’s the entrenched attitudes of some managers and business owners  – male and female – that fail to recognise and therefore protect employees from harassment, therefore not complying with their obligations under the act and their general duty of care to all employees.

Unfortunately, we have seen that sexual harassment still appears to be prevalent in the modern workplace. As an employer, sexual harassment can be difficult to deal with particularly when the perpetrator is a senior member of staff, or worse, the owner/CEO of the business. However to turn a blind eye is to be complicit in the behaviour, not to mention falling foul of employment law. Don’t forget an employer is vicariously liable for the actions of its employees, so it will be your responsibility as an employer if one of your employees is found to have committed unlawful sexual harassment and you did not take all reasonable steps to prevent it.

Harassment includes unwanted verbal or physical behaviour that creates a hostile work environment.  This could be anything from badgering someone to take part in social activities to being subjected to unwarranted criticism about work performance to harassment that is discriminatory on the grounds of age, race, disability etc.   This is widespread in working environments; however, it does appear that harassment of a sexual nature is more common than one might think.

As an employer, it can be difficult to deal with, particularly as above, when the person harassing is a senior member of staff, or worse, the owner/CEO of the business.  However, to turn a blind eye is to be complicit in the harasser’s conduct, not to mention falling foul of employment law:

  • Watch out for ‘banter’ – yes we all like a laugh to ease the stress of work but it can go horribly wrong when boundaries are crossed and seemingly harmless jokes turn sinister.  Keep an eye on what conversations are taking place to ensure you protect the staff that might be subject to bullying and harassment.
  • Educate staff and management as to what constitutes harassment and what the boundaries are.  Provide work place training on the topic as well as on equality and diversity which go hand in hand with it.
  • Ensure you have clear and rigorous policies in place, which not only act as a deterrent for any potential harasser but ensure that the victim knows they can and should report any conduct and that they would be protected should they do so.
  • Review your disciplinary process so that it’s sufficient to tackle the issue should misconduct be found to have occurred
  • Train managers not only in spotting the signs but in handling this type of complaint sensitively and equip them with tools to carry out the right process and procedure should they be tasked with dealing with the complaint.
  • Support the victim – if harassment is found to have occurred, it could have a serious effect on their health and wellbeing.  Do you offer access to a counselling service etc?