Coupled with this is the steep rise in employment tribunal claims following the abolition of fees by 100% compared to last year, a double-risk for employers.
Written by: Mark Emery – Employment Law Partner Photography by: Freeths Solicitors
It’s not just allegations of the ‘Weinstein” variety – allegations of rape, sexual assault, intimidation and potentially career ending consequences for rejecting his advances – that are of concern. Sexual harassment can occur if an employee is not promoted because they have rejected a colleague’s advances; or by comments, touching, or repeated ‘banter’ of a sexual nature. And, obviously, sexual harassment is not solely men harassing women; what is common in work-related harassment is a power imbalance.
If you’re concerned that sexual harassment may be occurring in your business, what can you do about it? If it’s, say, a junior manager harassing a colleague, your processes can handle this as an act of potential gross misconduct. But what if the issue is at the top of the organisation, with directors or owners potentially harassing junior colleagues? Or what if you’re concerned there may be a general culture of more senior managers ‘hitting-on’ junior colleagues? What can you do about it?
It’s worthwhile considering the definition of sexual harassment as set out in the Equality Act 2010. Note the names below are not contained in the legislation.
Albert harasses Brenda if Albert engages in unwanted conduct of a sexual nature which has the purpose or effect of either:
• Violating Brenda’s dignity, or
• Creating an intimidating, hostile, degrading, humiliating or offensive environment for Brenda.
– In deciding whether conduct shall be regarded as having the effect referred to above, the following must be taken into account:
• The perception of Brenda.
• The other circumstances of the case.
• Whether it is reasonable for the conduct to have that effect.
2. Rejection of or submission to conduct of a sexual nature.
Albert also harasses Brenda if Albert or another person engages in unwanted conduct of a sexual nature.
The conduct has the purpose or effect referred to above.
Because of Brenda’s rejection of or submission to the conduct, Albert treats Brenda less favourably than Albert would treat Brenda if Brenda had not rejected or submitted to the conduct.
As can be seen, there’s no need for the harassment to be ‘deliberate’; even if unintended, it will be harassment if it is intimidating, and it’s reasonable for the employee to feel intimidated. This means that, for example, Albert may be harassing Brenda if he continues to pursue her after she has rejected his advances, or he refuses to promote Brenda because she has rejected a colleague’s advances.
The Equality & Human Rights Commission Code of Practice highlights the following as sexual harassment:
• unwanted verbal, non-verbal or physical conduct of a sexual nature.
• unwelcome sexual advances, touching, forms of sexual assault, sexual jokes, sexual ‘banter’ displaying pornographic photographs or drawings or sending emails with material of a sexual nature.
• even where the employee has ‘participated’ in some of the ‘banter’.
One case illustrates this: Miss Smith was employed by a car dealership, and claimed sexual harassment, alleging her manager said that he had not heard what she was saying because he was thinking about having sex with her, pestering her about her private life and making speculative comments about her sex life. One of the employer’s defences was that Miss Smith had actively participated in the conduct.
The tribunal accepted that it would be harder for Miss Smith to complain and that employees can feel compelled to join in. It said that training of managers was not a defence, and a manager had been allowed to harass a junior employee.
What can you do if you suspect harassment may be occurring:
1. Publicise your anti-harassment policy.
2. Even if no complaint is made, consider whether you need to be proactive – for example management training, conversations with those whose conduct you suspect (and take a record of the conversation).
3. Consider having a helpline for employees to complain – and make it clear that any allegation will be properly and impartially investigated.
4. If there may be a ‘culture’ of banter which may be offensive to some staff; highlight this as unacceptable.
Take disciplinary action, not just training, if harassment is proven.
5. Remember: training is not a defence – you must take active steps, particularly if there is a complaint, or if you suspect harassment is occurring.
If you are concerned that your current policy and procedures regarding sexual harassment are not fit for purpose or if you believe you may have issues of sexual harassment at work, then please call Mark Emery, Employment Law Partner.