Sexual Harassment in the workplace – What can Employers do?

In this article, our Senior HR Consultant, Claire McGuinness, discusses sexual harassment in the workplace and what employers can do to tackle this issue.

Sadly, sexual harassment in the workplace continues to be a reality faced by many employees. In most cases, employers will be legally responsible for harassment suffered by their staff during the course of employment.

Definition of Harassment – The law

Sexual harassment is “unwanted conduct specifically of a sexual nature or related to gender reassignment and has the purpose or effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant or violating his or her dignity”.

The law (Equality Act 2010) protects the following people against sexual harassment at work:

• employees and workers
• contractors and self-employed people hired to personally do the work
• job applicants

A single incident can give rise to harassment under this section and, if the conduct is of a sexual nature, the fact that similar treatment is meted out to men as well as to women is irrelevant, as is whether the conduct was intended to violate someone’s dignity or create a degrading environment.

• When deciding whether such an environment has been created, the perception of the person making the complaint must be considered, as well as the other circumstances of the case, and whether it was reasonable for the conduct to have that effect.
• The conduct does not have to be directed at anyone in particular; for example, if an employer displays any material of a sexual nature, such as a topless calendar. This could amount to harassment of the employees if it makes the workplace an offensive place to work for any employee, whether male or female.
• The person does not have to be the direct recipient of the unwanted conduct. They could simply be witness to someone else’s harassment. If the environment at work is degrading, humiliating, hostile, threatening, or offensive it can be felt by all those working in it, even those who are not specifically the targets of the conduct, and the law allows such people to bring an action even if the direct victim chooses not to do so him or herself.
• The law also protects someone who has previously rejected conduct of a sexual nature and because of this is treated worse than someone else; for example, they are then refused a promotion because of it.
• It can be difficult at times to know where to draw the line between lawful and unlawful conduct, especially when the two sides may view the same incident in different ways. What is simple flirting to one person may be viewed by the subject of it as unwelcome and demeaning harassment. An invitation for a drink after work is hardly unlawful harassment, but it may become so if it is persisted in, or because of the language used or the manner in which it is made.
• A person who has been harassed can bring a claim in the employment tribunal seeking compensation. This has to be within three months of the last act of harassment that they are complaining of.

Employers defence

The ideal outcome is of course to create a workplace free from harassment. However, if an incident does occur, an employer that can demonstrate that they have taken all reasonable steps to prevent the harassment may have a statutory defence to any claims that arise.

(a) The employer can show that it took all reasonable steps to prevent the act from occurring and that it acted promptly to deal effectively with the complaint as soon as it was drawn to a manager’s attention.  

(b) The employer can show that the act did not occur “during the course of employment.”

Employers must do all they reasonably can to protect staff from sexual harassment and take steps to prevent it happening. So, what can employers do to minimise the risk of harassment occurring in the first place?

Prevention

There are two basic steps employers should take, and many are already doing so. First, have a policy in place which explains what harassment is, that it will not be tolerated, and sets out a framework for addressing complaints and taking disciplinary action up to and including summary dismissal for perpetrators.

Secondly, training is important as it will help ensure the policy is known and understood in the context of the specific organisation. 

However, despite many organisations having policies and training in place, sexual harassment still occurs. Organisations keen to minimise sexual harassment in the workplace, can take further steps, including:

Policies & Training

Improving the quality of policies and training. To ensure policies and training are meaningful they must be complied with in practice. This includes communicating with all employees upon joining the organisation and periodically throughout employment. The material should be tailored to the organisation and attendees, and ideally be focused on sexual harassment rather than all equality issues together.

Diversity

Diversity is key. A lack of diversity throughout an organisation, including at leadership levels, can increase the risk of harassment. We also know that certain groups are at greater risk, in particular women and where there is intersectionality of protected characteristics. By embedding diversity into all layers of an organisation, practices which reduce harassment are more likely to flourish. 

Culture

Instilling personal responsibility for making policies a success and changing the culture. Everyone has a role to play in maintaining a safe culture. This comes in two key forms – the first is ensuring everyone understands that it is not acceptable to be a bystander. Secondly, those in leadership roles must be consistently proactive in supporting and talking about the policies and standards expected. Everyone should be a visible champion of the harassment free workplace. 

Environmental Factors

Recognising environmental factors that create a higher risk of harassment occurring. Take time to consider where risks arise in your organisation. Many risk factors are common: high stress environments, late nights/long hours, working between just two colleagues (especially where there is a power imbalance), or any events involving alcohol or close contact. Once identified, consider what extra measures could be put in place to reduce the risk of harassment. 

Support for reporting

Until employees feel safe and supported in reporting harassment, an organisation may have an inaccurate view of whether a problem exists, its extent and as such how to address it. Ensuring there is an appropriate way for those with concerns to come forward helps the organisation understand what is happening, supports those affected, and may reduce the risk of incidents occurring. Appropriate levels of confidentiality and psychological support should be built into any safe reporting system. 

We know that stale policies and training alone will not suffice. In practice, the ‘all reasonable steps’ defence is a high bar for employers to get over. However, by taking the actions set out above, they would be in a far stronger position to achieve the aim of avoiding harassment entirely, and failing which, to succeed with reasonable steps defence to any claims that do arise.  

At HPC we can support you if you require expert advice on Sexual Harassment in the workplace, need to update or implement workplace policies, or provide Diversity or Dignity in the Workplace training. You can get in contact with our team of experts today who will help you to navigate through complex issues ensuring you remain within the law.

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E: contact@highperformanceconsultancy.com

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