The Equality and Human Rights Commission has recently published a report: 'Turning tables: ending sexual harassment at work' ("the Report"). It makes recommendations for improvements that employers could make, highlighting that there is a need to transform workplace cultures, promote transparency and strengthen legal protections.
The report suggests "putting the onus on employers to effectively prevent and resolve harassment" and makes a recommendation that a mandatory duty should be imposed to require employers "to take reasonable steps to protect workers from harassment and victimisation in the workplace".
This article looks at the findings of the report and makes some practical suggestions as to steps that could be taken by employers now.
Liability of employers for sexual harassment
Employers can be held liable for sexual harassment by one employee towards another, unless they are able to show that they have taken all reasonable steps to prevent the harassment. While taking all reasonable steps enables an employer to defend a claim, there are not currently any minimum requirements which if implemented would provide guaranteed protection.
The Report recommends that as a minimum, "reasonable steps" should include having an anti-harassment policy and appropriate procedures in place for reporting harassment and taking action. However, case law has confirmed it will not necessarily be sufficient just to have a policy and procedure and that a more proactive approach will need to have been demonstrated where harassment is shown to have occurred.
Reporting sexual harassment
It is nothing new that individuals do not always want to report harassment. While high-profile individuals talking openly about sexual harassment has started a conversation, it has not taken away the concerns employees may have.
The Report identified a number of barriers to reporting, which included a lack of appropriate reporting procedures as well as concerns that the issue would not be taken seriously, the perpetrators would be protected by the employer, and the employee would be victimised.
Do we need a new approach to dealing with allegations of sexual harassment at work?
The Report highlighted examples that interviewees had experienced which demonstrate poor practice in investigating allegations. These included scenarios where complaints were not taken seriously, the victim was treated as a trouble maker, the employer tried to prevent the victim from making a formal complaint and failures to deal with the perpetrator.
The consequences of an investigation into allegations of harassment were often found to impact negatively on the victim. The worst situations included dismissal, disciplinary proceedings or direct threats to damage the victim's career. In other cases victims were blamed for the harassment or the proposed solutions made the victim feel like they were being punished, such as where the victim was moved to a new department and the perpetrator left in their existing role.
While these are particularly bad examples, it is likely that many organisations do have room for improvement in the way they investigate and resolve allegations.
These findings underpin the identified need for proper processes, transparency and a shift in attitude to create a culture where reporting harassment is encouraged.
The Report makes the following recommendations:
- That there should be a new mandatory duty for employers, supported by a statutory code of practice, which requires all employers to take effective steps to prevent and respond to sexual harassment;
- That ACAS should develop targeted sexual harassment training for managers, staff and workplace sexual harassment 'champions', which would support employers in bringing about change.
What can employers do now to improve the way they investigate and resolve allegations of sexual harassment?
Dealing with such a sensitive issue is not easy and will inevitably involve challenging individuals' attitudes towards women (or men) when an issue arises. To help facilitate the best possible prevention, investigation and resolution of allegations of sexual harassment, our recommendations to employers are:
- Have an Equal Opportunities policy in place;
- Have a clear process available for reporting allegations of harassment;
- Provide training to managers and staff in senior positions to enable them to deal with complaints and to understand that sexual harassment will not be tolerated;
- Provide training to all employees on acceptable conduct in the work place to help them understand their rights and responsibilities and what they can do to create a working environment free of bullying and harassment;
- Ensure policies and training send a clear message that reports of harassment made in good faith will be taken seriously, investigated and dealt with without adverse consequences for the employee.
Our lawyers have experience in advising on all employment law issues and would be happy to discuss the steps you could take in improving your processes and how they can be implemented within your business. We also provide advice on issues arising throughout the employment relationship, including where issues lead to a claim in the employment tribunal. We have offices in London, Bristol, Exeter, Taunton, Tiverton and Plymouth.
To access a full copy of the report, please click here.