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Time for an audit to assess sexual harassment in the workplace

Emma Bartlett, Partner - CM Murray LLP

The need for a cultural audit – assessing sexual harassment in the workplace
The scale and effect of sexual harassment in the workplace is so significant that the government plans to outline new obligations extending an employer’s duty to prevent sexual harassment in the workplace.  The statistics are disturbing.  While an employer that has taken all reasonable steps to prevent sexual harassment at work may avoid liability for it, they will still be concerned about the reputational and commercial risks of this type a complaint.  A robust strategy for responding and investigating sexual harassment complaints will be integral to mitigating the negative impact it can have and providing confidence in resolution of the complaint.   This article explores what an employer needs to think about in formulating its strategy to improve its response to sexual harassment in the workplace.

The prevalence of sexual harassment in the workplace
In 2018, a survey by the EHRC found that three quarters of women had suffered sexual harassment in the workplace, almost all of which was perpetrated by male colleagues, customer, clients, contractors or service users.  The EHRC referred to it as being demonstrative of “power imbalances based on gender” and being “part of a spectrum of disrespect and inequalities that women face in the workplace and every day life”.  In an earlier survey by the TUC, it was found that the incidence of sexual harassment was higher in young workers (age 16-24).

Explanations as to why sexual harassment in the workplace continues somewhat unabated provide a basis for employers to prepare their strategies for responding to it.  It’s relevance to employers is two-fold:  first, to meet obligations under health and safety legislation to provide a safe system of work and to take reasonable care of employees’ health and wellbeing at work, and secondly to meet their obligations under the Equality Act 2010 to take reasonable steps to prevent harassment an victimisation of a wide range of individuals at work (ie employees, workers, apprentices, contract workers, partners and members of an LLP).  While an employer’s response to sexual harassment at work may be affected by its size and administrative resources, no employer is exempt from complying with the basic health and safety obligations at work.

Reasons for poor reporting
According to recent surveys, one fifth of younger women reported that they didn’t know how to report incidents of sexual harassment.  Other reasons cited for not reporting included, fear of losing their job or facing reduced hours and a minority stated they had experienced less favourable treatment because they had rejected sexual advances at work.

Around 50% of women had not reported sexual harassment at work to anyone, which is worrying in itself given the profound affect harassment can have not just on a person’s career, but emotionally as well.   Barriers to reporting further included a perception by the victims of sexual harassment that they wouldn’t be taken seriously, a belief that their alleged harassers would be protected (particularly if senior in the organisation), and a fear of victimisation.  While the number of individuals who reported feeling that their career paths were threatened if they talked about it, a badly handled complaint may result in the individual feeling blamed for the harassment resulting in their reputation, career and health suffering.

These survey results mirror the reasons for such complaints remaining hidden across many different sectors. The #MeToo movement led to an outpouring of whistleblowing and sexual harassment at work complaints in circumstances where there was an imbalance of power between the perpetrator and the victim and a perception that the senior male was too valuable to the organisation for the complaint to be taken seriously.  Employers continue to be criticised for being seen to have ‘hushed up’ allegations of sexual harassment through over use of confidentiality provisions or NDAs.

Types of sexual harassment
It is worth briefly mentioning that the Equality Act 2010 identifies three different types of unlawful workplace harassment:

  • Harassment related to a protected characteristic;
  • Sexual harassment; and
  • Less favourable treatment for rejecting or submitting to unwanted conduct.

Harassment related to a protected characteristic (note that there are nine protected characteristics such as sex, age, race, disability etc.) arises when a worker is subjected to conduct which has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive work environment.  The intention of the perpetrator is irrelevant.

The range of unwanted conduct can include:   banter, verbal or written comments, social media posts, graffiti, imagery, physical gestures, mimicry, facial expressions, pranks, aggression or physical behaviour toward a person or their property.   Whether the conduct is ‘unwanted’ is subjective, in from the viewpoint of the recipient of the behaviour and it does not matter that the recipient does not express at the time that the behaviour is unwelcome.  It may be obvious that conduct is unwelcome if its affects their dignity.  Also, the protected characteristic to which the harassment relates need not be a characteristic of the victim for the individual to find the harassment unwelcome.

Sexual harassment is a defined term in the Equality Act; it will essentially be the unwanted conduct described above that is sexual in nature.  It does not need to be sexually motivated. Sexual interaction with is consensual will not amount to sexual harassment, but employers may nevertheless be concerned about this between co-workers since it prevents different risks of fairness and independence (if one of the workers can influence the others career or remuneration, or if the relationship ends).   Employers can protect themselves in this regard by having robust relationship at work policies.

The third type of sexual harassment requires the attributes of the first two types, and additionally less favourable treatment because the individual rejected or submitted to sexual advances at work.

Assessing the risk of sexual harassment in the workplace
It’s important to note that this is not a one-off task; the employer’s strategy should be reviewed regularly and particularly where there are changes in the workplace.  Effective policies should be monitored and responsibility for them should be owned.

Employers should also not assume that the number of complaints of harassment generally reflects the level of it in their workplace.  When complaints are made, whether informally or formally, collating a centralised record will allow an employer to analyse trends.  A centralised record is recommended as the employer can use it to consider whether there are particular areas of the business from which complaints stem, roles of the persons referred to in the complaint, what types of harassment, the outcome in each case and the reason for it.   Serious consideration will need to be undertaken of how the central record is GDPR compliant.

Further risk assessments should identify the risks and the control measures identified to minimise the risks.  Factors may include, as noted above, power imbalances, job insecurity, lone working, presence of alcohol, customer facing duties, events that raise tensions, lack of diversity in the workforce and worker on secondment.

A power imbalance may be identified between a senior manager and someone junior to them who may have a protected characteristic and is in a minority in the workplace or is in insecure employment.  Power imbalances can be reduced or diluted by removing isolation of junior staff, addressing under-representation of workers, increasing representation at the senior decision making level of the various different groups within the workplace, and providing sufficient support to workers at all levels.   Employers can use positive action measures as provided for in the Equality Act 2010 to improve representation of an under-represented group.  Various measures could include development programmes and mentoring network for underrepresented groups, regular diversity and inclusion training for executive decision makers and for those who make recruitment, development and promotion decisions.  In the same way employers may have mental health champions, introducing harassment champions representative of those in insecure and more junior positions is another option.

Conducting a cultural audit should also include feedback provided through conversations with employees.  This may include exit interviews, but where these are either not routinely offered or taken up, there is no substitute for an internal, confidential interview process with current staff.  This type of investigation can be undertaken at any time, with the assistance of volunteers from within different teams, provided skilled investigators are responsible for it and have experience in maintaining confidentiality and integrity in the process.

Without doubt, understanding whether existing workers have confidence in the employer’s current processes to speak up, should the need ever arise, is critical to evaluating the effectiveness of the employer’s strategy on dealing with sexual harassment in the workplace.

An employer can use staff surveys to gauge whether complaints of sexual harassment are being properly being reported.  Drafting appropriate questions and measuring the responses year on year will be helpful.  Have workers witnessed or been subjected to this type of harassment, did they report it, if so were they satisfied with the outcome, and did they feel supported throughout the process.

Collecting feedback from informal one-to-ones, sickness absence or return to work meetings, performance reviews, mentoring programmes and staff networks are all useful repositories for information to assess the workplace culture.

While complaints of sexual harassment are hopefully few and far between, as with any workplace investigation, lessons learned sessions once a complaint has been resolved should form part of a cultural audit.

It can be seen that an employer can access a multitude of data from which it can assess the risk of sexual harassment in its own workplace.  The question is whether it chooses to collate and analyse it for this purpose and use it to define its strategy.

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