Current media attention has bought harassment in the workplace into the spotlight. Protection from harassment as a freestanding claim has been enshrined in statute for over ten years. Yet last year, the Trade Union Congress’ survey found that over half of women in the workplace had experienced a form of sexual harassment; so why is this type of behaviour still occurring? Clearly employees do not feel comfortable raising these issues in the workplace.
Employers and those employees in positions of responsibility must act now to ensure staff are working in an environment where harassment is: 1) not tolerated; and 2) allegations of harassment are taken seriously and dealt with effectively. It is only once consistent action is adopted in relation to harassment that we can expect to eradicate it.
Raise your voice
The Equality Act 2010 prohibits harassment related to sex (i.e. gender), sexual harassment and less favourable treatment due to an employee rejecting or submitting to harassment.
The first two types of harassment have garnered the most media attention and it is worth recapping on the test for establishing this type of prohibited conduct. The two stage test for harassment related to sex and sexual harassment is as follows:
the conduct of the perpetrator must be unwanted and related to sex/ or of a sexual nature; and
- have the purpose or effect of violating the victims’ dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for the victim.
Often it is easier to establish the second limb of the test, as the individual may only need to show that the effect of the behaviour caused them to feel violated or that they were intimidated by it, for example.
The difficulty frequently arises in relation to whether the conduct was unwanted. As is obvious from recent media cases, individuals have diverse ideas about what conduct may be acceptable and/ or wanted. This has provided a wakeup call to employers that many have chosen to remain silent or simply put up with unacceptable behaviour as they have not felt confident in tackling these issues head on. Speaking up to make it clear that conduct is unwanted is always preferable but a claim can still be successful when the victim has not been able to do this.
In Munchkins Restaurant Ltd and anor v Karmazyn and ors several female employees succeed in bringing harassment claims even though their employer argued that they had not openly objected to the behaviour which involved persistent questions about their sex lives. In this case the victims remained in employment and sometimes engaged in conversations of a sexual nature as a defence mechanism to deflect more intrusive questions about their sex lives. The EAT stated that employees may put up with unacceptable behaviour because they are constrained by social pressures but this will not bar them from bringing a successful claim.
The aim should be for employees to feel confident in raising complaints about harassment as soon as possible. Confronting the perpetrator should allow all parties to resolve the issues in a satisfactory way and decrease the chances of contentious Tribunal proceedings.
We believe there are practical steps everyone in the workplace can take now to ensure future incidents are dealt with transparently.
Employers: do your part
Employers need to set the precedent for a safe working environment. It is no longer sufficient merely to have static policies in place dealing with equal opportunities, harassment, bullying and whistleblowing in the workplace.
We recommend the following are considered by employers:
- interactive staff engagement through training days, workshops, panel discussions;
- specific training for those in leadership positions to boost their understanding and gain confidence in spotting and tackling harassment issues from the outset;
- active support for whisteblowers who report harassment and/ or bullying;
- transparent procedures for dealing with reported behaviour including the elimination of any ‘cover-up’ culture;
- ensuring investigations into allegations of harassment and/or bullying are carried out confidentially and by objective and independent bodies where appropriate; and
- applying appropriate disciplinary sanctions, including dismissal for gross misconduct, where harassment allegations are proved.
Employees: how can I help?
Unfortunately, it is likely most employees will come across some form of harassment during their working lives, whether that is personal, a colleague or merely rumours in the office. Therefore, it is important for employees to help identify any unacceptable behaviour and provide assistance with resolving these issues where possible.
Employees should consider the following:
- how individual behaviour may impact others in the work environment, conduct which they think is acceptable may not be acceptable or wanted by co-workers (e.g. what has been termed ‘harmless banter’ may have a negative impact on someone);
- individual employees can be held personally liable for acts of harassment carried out in the course of their employment, this could result in a financial liability. Managers and those in senior positions should therefore be very wary of letting this behaviour exist in their teams;
- ensure policies and procedures put in place for reporting harassment are followed (i.e. grievance procedures and whistleblowing procedures); and
- ensure confidentiality is maintained when airing concerns (i.e. it is not likely to be appropriate to discuss concerns with the media before first reporting the issues within the company).
With the WWII dogma of “loose lips sink ships” firmly behind us, employers and employees should work together to create a transparent working environment in which it is safe to speak up about unacceptable behaviour. This in turn should send a strong message to perpetrators that there is no place for their actions in this world.