The Size of the Problem within the UK
A TUC report on sexual harassment in the workplace has found it appears to be at endemic levels. According to the survey, 52% of women have experienced some form of sexual harassment at work. It was carried out by YouGov, and is based on the opinion of women who are working, or who have ever had a job, and were happy to be surveyed about this topic, from an overall sample of British adults. If the figures are representative of the UK workforce as a whole, they make grim reading.
Of those who have reported sexual harassment, 12% said that the incident was not even acknowledged by their employer. Most respondents said the incident was acknowledged, but 31% reported no action was taken.
Sexual harassment is hard to spot and deal with. It can happen in private settings with no witnesses, in poor workplace cultures where peers perceive it to be the norm, or in plain sight when the perpetrator relies on the victim not wanting to cause a scene by ‘making a fuss’. It can be difficult to report workplace harassment for fear of job loss, retribution and no consequence for the perpetrator.
Recent high profile developments in business, politics and the entertainment industry indicate the increasing potential for claims. The first claim against Harvey Weinstein has been lodged in the UK, emphasising changing social norms. There is likely to be a knock-on for businesses, with claims frequency set to increase. Sexual harassment will continue to be a high profile issue. The sheer volume of people speaking out about the problem means that a new zero-tolerance attitude is emerging. Insurance companies are bracing themselves for a vast number of historical sexual harassment claims.
The Nature of the Beast
Sexual harassment is just one form of discrimination, and much of this Newsletter will focus on sexual harassment, but it could equally well apply to any other form of discrimination or harassment.
There are a number of ways that complaints and concerns about harassment can come to the attention of an employer. These can include:
- an employee raises the matter quietly and informally with a Manager;
- an employee raises the matter formally as part of the organisation’s grievance or other process;
- a member of staff or Line Manager notices behaviour that concerns them;
- if someone witnesses sexism in a workplace, but does not work there, they can usually raise their concern with Management by making a complaint;
Sexual harassment might be obvious, insidious, persistent or an isolated incident. It can also occur in written communication, by phone or through email, not just face-to-face. It is likely to be manifested in:
- spreading malicious rumours, or insulting someone, unwanted physical contact;
- leering at an employee’s body;
- unwelcome remarks about a person’s age, dress, appearance, or marital status, jokes at personal expense, offensive language, gossip, slander;
- posters, calendars, graffiti, obscene gestures;
- coercion for sexual favours;
The Legal Perspective
It is well established from case law that a single act can fall within the definition of unwanted conduct, under the Equality Act 2010. No Employment Tribunal would have sympathy for a harasser who was dismissed after committing a one-off serious act of sexual misconduct.
The motive of the “harasser” is irrelevant in harassment claims. The key issue will be the effect on the person who is on the receiving end of the behaviour. It is also possible for someone to claim harassment when the offending remark or action is not directed at that person. A person overhearing a sexist remark could claim sex discrimination, even if the perpetrator did not realise that he/she was listening.
Sexual harassment is traditionally thought of as a man’s unwanted actions towards a woman. But there is nothing to stop a man claiming harassment against a woman, or an individual claiming to have been harassed by someone of the same sex.
Claims are difficult and time consuming to defend. The loss of public reputation can be considerable and the stress of being the ‘accused’ or even just a witness can all detract from ‘normal business.’ Harassment claims present a number of difficulties for organisations. It is a form of discrimination claim that offer claimants a less evidentially onerous route to obtaining compensation. There is no requirement to prove foreseeability of loss and employment tribunals can award damages for ‘injury to feelings’ without proof of psychiatric injury. Employees can claim for injury to feelings and these awards are called Vento Bands.
Since April 2018, the Vento bands are as follows:
- a lower band of £900 to £8,600 (less serious cases);
- a middle band of £8,600 to £25,700 (cases that do not merit an award in the upper band); and
- an upper band of £25,700 to £42,900 (the most serious cases), with the most exceptional cases capable of exceeding £42,900;
Bad cultures will lead to bad employee relations and morale, which may well manifest itself in absence levels and labour turnover.
In order to meet their responsibilities, and to protect themselves against sexual harassment claims, employers should undertake the following preventative measures:
- The first thing you need is some sort of clearly written and well communicated policies and procedures in place, to ensure fair treatment for all workers. A Dignity at Work Policy goes beyond an Equal Opportunities policy.
- These policies should reflect and acknowledge Senior Management’s commitment to tackling and eradicating sexual harassment. Any culture change needs to be led from the top.
- Educate all employees on the organisation’s harassment policy.
- Develop a culture of respect and gain an understanding of what constitutes acceptable and unacceptable behaviours.
- Ensure that everyone is aware of the consequences of violation.
- Maintain a procedure that allows the victim to file a complaint with a person other than the victim’s Line Manager.
- Make a positive statement that people who report will be supported and protected.
- Train Managers to sensitively and fairly address complaints.
- Managers need to recognise what is, and is not, acceptable, and how to deal with the issues properly. They need to be aware that dealing with sexual harassment complaints will be emotional and personal for the parties involved, so need to be handled non-judgementally.
- Be very clear that some language and phrases can cause offence, even if they have been made unintentionally, or as a joke. Derogatory terms are clearly unacceptable and discriminatory. It is important to keep in mind that the law considers how such words are perceived by those who receive them – and it is usually irrelevant how, or why someone made them in the first place.
According to ACAS, all complaints of sexual harassment should be taken very seriously and handled fairly and sensitively. They recognise that experiencing sexual harassment is often extremely emotional and distressing for the worker involved.
Harassment (and Bullying) Investigations – General Advice
All complaints of harassment, of any kind, along with bullying complaints, should be taken very seriously. Failure to do so can make them much worse. There is no need to require a complainant to provide “proof” prior to conducting an investigation. The purpose of the investigation is to gather information and evidence.
When handling a complaint about sex discrimination, employers should:
- gather data to determine all relevant facts concerning the conduct in question;
- be prompt, thorough and impartial;
- listen to both the alleged harasser, and the complainant’s version of events;
- keep an open mind – discrimination situations are often very individual, and what may, or may not, be felt to be discriminatory can change over time, and from person to person;
- be respectful and empathetic to the employee who raised the complaint, and certainly initially the alleged perpetrator, as there are always two versions of events – cases can be also be particularly upsetting/stressful to experience for all involved, including witnesses;
- investigate the matter thoroughly, and be tactful when looking for evidence that supports or undermines the grievance;
- carefully document when and how the claim first came to the attention of the organisation;
- treat all claims as valid until proven otherwise;
- keep all discussions and information as confidential as possible;
- lead to a time-scale for resolving the problem;
Experiencing harassment is often extremely emotional and distressing for the people involved. This means making reporting such a matter as stress-free as possible. In most cases this involves simple things like making sure there is sufficient time to discuss the matter, and finding a private space to meet.
It is also likely to be very distressing for a worker to be accused of harassment. Whilst a fair and thorough investigation will need to be carried out, accused workers should also be offered support and sensitivity during the investigation process.
Serious allegations of harassment, bullying or any intimidating behaviour should normally be treated as a potential disciplinary offence, which may mean that the alleged harasser may need to be suspended, which in many instances is to protect them from further claims.
Always make a record of complaints and investigations, even if the matter can be resolved informally. These should include the names of the people involved, dates, the nature and frequency of incidents, action taken, follow-up and monitoring information. All sensitive information should be treated as confidentially as possible.
It is prudent to provide support to both individuals while the investigation, and any subsequent disciplinary action, is conducted. You should consider temporarily changing working arrangements for the duration of the investigation, particularly if it is against the complainant’s Line Manager, or a close colleague. The complainant should be kept informed of the progress of the investigation, and its outcome.
Employees should also receive training on bullying and harassment in the workplace, so they are aware that such behaviour is not acceptable. This should include educating employees that ‘workplace banter’ is often a euphemism for bullying and harassment if it causes offence to others. Tribunals have rejected the notion that such claims can be defended on the basis that sexist remarks were “only banter” or ”just a harmless bit of fun”. Staff can feel humiliated or offended without it being obvious to others and it well may happen in the workplace without an employer’s knowledge. Tribunals recognise that the employee is often in an unequal relationship with the harasser, and that it is a natural reaction to wish to avoid further conflict or ‘publicity’. The lack of action from the victim is usually attributed to a fear of losing employment. They look at the circumstances of the case, and the perception of the individual concerned, before determining whether or not it was reasonable for the conduct to have that effect.
It is the responsibility of all employers to make sure that their Equal Opportunities and Dignity at Work policies are not just sitting on a shelf, or on a server, but are widely understood and followed. To avoid liability for a claim, the employer must also take prompt and effective action that is reasonably calculated to end the harassment. When deciding the case, the Tribunal will analyse the investigation made by the employer, and the effectiveness of the remedial action taken. The Court’s decision on the effectiveness of your response is often based on whether the remedial action ultimately succeeded in eliminating the harassment.
Taking Disciplinary Action
Once the investigation is complete, you must then take appropriate steps to remedy the situation. If the claim is substantiated, you must determine what discipline is appropriate. If the harassment was severe, or occurred over an extended period of time, or the harasser was previously disciplined for such conduct, then dismissing the harasser may be appropriate.
- Follow the disciplinary policy to the letter and document, document, document.
- If you are going to discipline an employee, make sure that you get something more than just compliance by that employee. They need to recognise there is a problem, and what exact behaviour they must stop doing.
- Remember, disciplinary action must be justifiable, evenly applied to all similar situations, and responsive to the severity of the issue.
- Don’t jump to termination, even if you want to show your commitment; it may set an example that can be damaging to morale.
- Try to facilitate either an apology and/or mediation between the accuser and the alleged perpetrator, to help rebuild the working relationship, especially if they cannot avoid each other going forward within the work place.
Taking disciplinary action against an employee who is accused of sexually harassing a fellow employee may not be sufficient, and that proactive and reactive steps are necessary to avoid liability. Employers should proactively seek to prevent wrong-doing arising in the first place – but if it does still take place, if employers can demonstrate they took all reasonable steps to prevent the act of harassment from taking place, they may avoid liability. Policies must be up up-to-date and demonstrably routinely followed.
Sexual harassment is serious, but needs to be dealt with based on all the circumstances. Fairness is still important. We are all adults in the work place, and are all still human, subject to sexual impulses and subject to poor judgment on occasion. Because issues of hostile work environments are often cumulative in nature, many people don’t know when they have crossed the line, from occasionally annoying behaviour to sexual harassment, until someone brings it to their attention. We are human, we joke, we laugh; we probably say inappropriate things from time to time. If you impose the ultimate option of termination each time someone makes a small error of judgment, you may not be seen as an employer of choice. Equally, consistently ignoring the problem, with no penalty for people that behave badly, will also mean you will be not be seen as an employer of choice, so the right balance has to be struck.
This is often the easiest and fastest way with which a complaint can be resolved. This type of action will usually be suitable in instances where the behaviour has not been repeated, or isn’t serious in nature.
Informal measures may include:
- The victim approaching the harasser and asking them to stop the behaviour;
- Approaching the alleged harasser with the support of a colleague, trade union rep or Manager;
- Asking a Manager to approach on their behalf.
If informal resolution approaches don’t work, formal procedures should be triggered. They’re needed if the harassment is serious or persists, or if the individual prefers this approach, so this is why it is so important to ask someone who makes a complaint, what it is that they want by way of resolution.
Increasing public awareness has burst the dam of secrecy, resulting in a flood of calls for greater transparency across many organisations. As a consequence, corporate cultures must change to ensure appropriate safeguards are in place to protect the safety of employees, those they come into contact with, and the organisations’ own finances and reputation.
Recent cases, broadening the scope of vicarious liability, will also impose liability in wider circumstances. Once limited to the strict employer-employee relationship, it can now apply to relationships akin to employment, such as sub-contractors, where an individual is carrying out activities on behalf of the organisation, responsibility has been assigned to them and they are controlled by that organisation. Volunteers and gig economy workers present areas of potential liability. All relevant individuals (including sub-contractors and volunteers) should understand the expected workplace standards. Organisations must also ensure that appropriate management and supervision is in place.
The Equality and Human Rights Commission has published a report ‘Turning the tables: ending sexual harassment at work’, which shares evidence about sexual harassment in the workplace, and makes recommendations about how to end sexual harassment at work. The recommendations are very much about going back to old procedures, which the Government is unlikely to implement, but neither are they likely to ignore the issue.
You are welcome to raise any queries or questions with our Consultants who would be pleased to advise you on any element of the issues arising from this newsletter.