Sexual Harassment has always been and continues to be an issue in many workplaces around the world. Whilst laws are in place to protect employees from unwanted advances, abuse and assault, the last 12 months have revealed that many individuals and businesses still experience an unhealthy and sometimes unlawful culture. Article by Donna Martin, Partner – Mackrell Turner Garrett.
With celebrities continuing to speak out against the likes of Hollywood heavyweights such as Harvey Weinstein and Kevin Spacey, and with further accusations made against business leaders and MPs in the UK, the global conversation about sexual harassment in the workplace has accelerated at an incredible pace which does not look likely to slow down or stop.
Social media campaigns such as #MeToo continue to play a prominent role in the media and people’s personal lives with new stories continuing to emerge on a daily basis – empowering those affected to speak out with less fear of detriment to their career from voicing concerns.
It is therefore very likely that 2018 will be a year when businesses employ a significant focus on sexual harassment in the workplace. With this being the case, it is worth going back to basics to consider what actually constitutes sexual harassment in the workplace and what should employers be doing to ensure that they are compliant with current legislation?
What is sexual harassment?
Sexual harassment occurs where both: A engages in unwanted conduct of a sexual nature; and the conduct has the purpose or effect of either violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B. This is the current law in England, Scotland and Wales in accordance with section 26 (2) Equality Act 2010 (“EqA”).
The Equality and Human Rights Commission Employment Statutory Code of Practice (“EHRC Code”) states that conduct of a sexual nature may: Be any unwanted verbal, non-verbal or physical conduct of a sexual nature; and includes unwelcome sexual advances, touching, forms of sexual assault, sexual jokes, displaying pornographic photographs or drawings or sending emails with material of a sexual nature.
What obligations does an employer owe an employee?
An employer has a duty to protect its employees and other workers from harassment in the course of their employment; this includes harassment by members of staff and can extend to third parties, for example, the employer’s customers, service providers or visitors.
An employer also has an implied duty to provide a safe and suitable working environment to its workers. An employer should therefore ensure that it has an anti-harassment policy in place.
The EHRC Code suggests that a harassment policy should: describe the protected characteristics and clearly state that any harassment of workers or job applicants related to any of these characteristics will not be tolerated; make it clear that harassment will be treated as a disciplinary offence; clearly explain how a worker or job applicant can make a complaint, informally and formally; make it clear that complaints of harassment will be dealt with within a reasonable time, treated seriously and confidentially, and that someone complaining will be protected from victimisation; describe what support is available to a worker or applicant if they think they are being harassed, for example, counselling or a worker assistance programme; describe any training/other resources available for workers to help them spot and stop harassment; describe how the policy will be implemented, reviewed and monitored; and include a review process; this is particularly important if someone has complained of harassment, as the employer will need to make sure that their policy was effective in dealing with the incident.
Considering the reputational impact that a claim brought against a company could have and to ensure that employees feel safe and are properly protected within the workplace, it is essential that all businesses, regardless of their size, consider their procedures for identifying and dealing with complaints of sexual harassment.
Whilst an employer is not legally obliged to have a separate harassment policy, it is advisable that one is in place and that all employees receive training on its content. By doing so it will assist an employer (who is subject to a sex discrimination claim) with evidencing that they have taken ‘reasonable steps’ to protect their employees from harassment.
Creating an environment where employees can be open and honest is an important start to identifying areas of weakness in advance, which can then be dealt with by preparing suitable policies and taking action where necessary against unwanted behaviour. It is essential that policy is clearly communicated to all staff, whether they are the CEO or the office apprentice, and properly acted upon. If a company is unsure of where it stands on sexual harassment and whether its policies are sufficient, outside help is always advised. Failing to prepare for a claim is preparing to fail.