The go-to response to almost every corporate scandal is “a few rotten apples”. Contributor Patrick Howarth employment lawyer and head of Retail and Consumer at Foot Anstey.
You can see why: it limits the blame to people you wouldn’t like very much. It also suggests not only were leadership unaware of it but, had they been, they would have stepped in with admirable bravery.
In most cases “a few rotten apples” wins. It’s the best there is. But when it comes to workplace harassment there’s no point even trying it. Harassment is everywhere, and we all know it. In part, we know because of Foot Anstey’s recent poll of over 1,000 staff in the retail sector.
We discovered over 1 in 10 experienced “inappropriate touching of a sexual nature” in their current role. Given the size of the UK retail sector that’s around 319,000 people. It’s eye-catching and unpleasant. But as an employment lawyer I have to be honest and say it’s a great example of something which is shocking without being surprising.
There are a number of reasons I’m not surprised and almost all of them are about how harassment is dealt with by companies and the law.
More Employment Tribunals: more expensive when they happen
Single Claim Employment Tribunal claims have increased by 108% in two years. In part that’s structural – it’s become easier to take an employer to court. But there’s also a significant increase in claims featuring harassment.
Of the 1 in 10 who experienced “inappropriate touching” over a third say their employers “could have done more” to prevent it happening. In fact it’s worse than that, because the very people meant to stop it happening are often the ones making it happen.
We know an overwhelming majority of workplace harassment is instigated by more senior staff. This is borne out in industry statistics and our own long experience representing employers. Survey respondents tell a similar story:
“I used to work in an establishment with two male colleagues who would be both verbally and physically sexually inappropriate. Unfortunately due to their relationship with the senior staff, they both got away with it.”
Experiences like that have led to a rise in the tribunal workload. It is now perfectly normal to see a claim first appear at a hearing over a year from the date it’s submitted. To that you must add the extra time and expense of hearing harassment cases due to the need for more witnesses.
Two more statistics for you:
Employers lose in around 90% of cases which make it to a hearing
The average payout for sex discrimination, where harassment is often cited, is £13,212
Who is affected?
What particularly struck me about our survey was this isn’t confined to a particular part of the working population – men report poor experiences as much as women. It also suggests younger generations call out behaviour which years ago might have gone unreported.
One respondent said: “One particular colleague insists on touching people inappropriately. She is older and so everyone dismisses it as funny.”
A lot of organisations focus on the interaction between colleagues and, yes, that’s a part of the story but not the whole story.
We found customers were just as likely to be a source of inappropriate behaviour – and far worse when it came to the threat of violence.
One respondent said: “A customer harassed me by constantly coming into my place of work to see me and then found me on social media and tried to contact me.”
Another told us of feeling deeply uncomfortable with one customer who always asked to be served by her.
Undoing good work
Harassment is a risk to all your hard work creating a distinctive employer brand and the positive engagement of your people.
If a sizeable contingent of your staff don’t feel comfortable at work and, worse, don’t feel supported if they raise concerns this will impact retention and morale. It will also make it harder to embed a culture the business tries to articulate.
We looked at what steps those who felt their employer hadn’t supported them would take. Nearly 80% were very or quite likely to talk to their friends about it – and of course these discussions could easily take place on social media.
And we regularly advise clients on ways to deal with the potential for adverse publicity, as cases involving harassment allegations are much more likely to attract media coverage.
What can be done?
Protecting your people and protecting the business are the same thing. Whatever you do to minimise the risk to staff will also reduce your exposure to legal claims.
Many managers are promoted on the basis of technical abilities and are not equipped with the leadership skills to deal with harassment – or even recognise it when they see it. That’s no one’s fault. The important thing is to change it.
It’s not about calling in the ‘Banter Police’ or rooting out rotten apples. It’s about building resilience and awareness.
The answer is quality training for your managers.