It is hardly surprising that with so many news stories reporting workplace harassment and sexual misconduct, employers are revisiting how they tackle these issues in their own workplace. Particularly those working in FTSE 100 companies following the EHRC’s announcement this week that they had written to the Chairs asking them to prove that they have taken action to prevent workplace harassment. In a move which signals how serious this matter has become the EHRC’s Chief Executive, Rebecca Hilsenrath said “Sexual harassment is rife across all of our industries. We accept it far too easily, in terms of the culture we live in. Accountability lies with leadership.”

In this law-now we set out five steps to consider in light of the controversial allegations currently circulating around historical incidents, abuse of power and a culture of silence, before sharing our thoughts on the wider issues involved in understanding bullying and harassment, and tackling it within the workplace.

Step 1 Check your policies are fit for purpose

If you have not yet considered this, now is definitely the time to ensure that your policies and processes are in place to respond to any complaint of harassment and any negative publicity that may arise as a result.

These press reports should act as a trigger not only to ensure that your equal opportunities/ harassment/dignity at work policy is fit for purpose and accessible to staff, but also that there are other suitable policies in place, particularly in relation to social media.

The speed at which the publicity on this issue has grown has undoubtedly been fuelled by the use of social media and the likes of the #MeToo campaign. As a result, there are plans to set up a website: AllVoices, where workers can report sexual harassment in an anonymous manner, (although it is currently not operational.) It is reported that the website will contact the employer to highlight the allegation. This is not how any employer wants to find out that they have a problem in their workplace.

Step 2 Do you want to issue a statement?

While there is no requirement to do so, employers may want to tackle this issue head on by making a positive statement to staff from a senior figure. This would refer to the press reports and explain that the intention is to create a workplace free from harassment and signpost a number of internal policies and support available to employees if they feel they have not been treated appropriately. The statement might also cover points that everyone has a responsibility to behave appropriately and professionally in the workplace, with potentially some practical examples. This approach has the advantage of encouraging internal resolution rather than speaking to a newspaper or making comments online about a work colleague’s indiscretions.

Step 3 Speak to your people managers

Managers are in the front line and it is part of their job to ensure that appropriate workplace conversations take place. Managers should:

  • establish a culture that employees should contribute their views and feedback is welcomed rather than being told what to do in a hierarchical way;
  • communicate that they will challenge any inappropriate behaviour, and intervene where they hear inappropriate language or behaviour; it should be clear that employees should not share discriminatory views in the workplace;
  • be able to identify bullying and harassment when it arises and deal appropriately with it, including taking appropriate disciplinary action; and
  • be supportive when individuals come forward and respond to allegations seriously. Taking this approach is part of challenging the culture of silence that has been prevalent in the recent news stories.

Step 4 Is training required?

If it is apparent from having these conversations with managers that there is a lack of understanding regarding bullying and harassment then managers should be invited to attend training. If the resources are available, then it would certainly be preferable to deliver training to all managers regardless of their level of knowledge and awareness. Organisations should support their managers to give them the confidence to intervene, but also to ensure that the correct approach to creating an inclusive culture is adopted.

Step 5 If required, respond to historical allegations

One of the features of the stories in the media is the issue of allegations of historical harassment. Employers cannot simply ignore complaints because they took place some time ago or if the alleged harasser no longer works for the organisation. Although it will obviously be more difficult to investigate historical issues in terms of witnesses remaining in employment and their recollection of events, that is not a barrier from employers investigating this, or supporting an employee.

Employees making allegations of historical harassment should be asked to set out their complaint in the same way as any other formal complaint under a relevant policy and set out specific times, issues and witnesses. Any steps taken by the employer must bear in mind the sensitivities of the situation for all involved (including the alleged perpetrator) and to the extent further steps are appropriate, employers must ensure that they act fairly.

Reasonable steps defence

All of these steps will assist an employer should a tribunal claim be raised. An employer may avoid liability for the actions of the harasser because they took all steps reasonably practicable to avoid the harassment. While this defence will involve a range of actions, (referred to in the steps above), including both having and applying the terms of a relevant policy, training staff and so on, the fact that the employer has also issued a statement condemning this behaviour obviously bolsters this defence.

Some of the wider issues that an employer should consider in relation to bullying and harassment are set out below.

What are the legal risks?

Both bullying and harassment can give rise to legal complaints and be expensive and reputationally damaging for an employer. In one case Green v DB Services a claimant succeeded in obtaining over £800,000 in damages after withstanding a campaign of bullying which had a significant impact on her health.

The variety of legal remedies available to an individual which include constructive unfair dismissal, a discrimination complaint, a personal injury complaint and a complaint under the Protection from Harassment Act 1997 all serve to highlight the significant risks which can arise if the issue is not properly managed.

One particular issue is dealing with complaints against senior people. For example, in Horkulak v Cantor Fitgerald a senior manager, who worked as a trader resigned and claimed that his manager’s bullying and abusive behaviour made his life intolerable, and this amounted to constructive dismissal. The court ruled that a high salary does not excuse a poor working environment. His manager’s conduct amounted to a breach of the implied term of mutual trust and confidence.

Is there an understanding of the legal definitions of bullying and harassment?

Whilst bullying and harassment are used interchangeably, from a legal perspective harassment normally occurs because a person has a particular protected characteristic, i.e. they are targeted because they are female or suffer from a disability.

Bullying can take many forms, from a simple misunderstanding to allocating work in such a way that an employee is being set up to fail. Bullying normally arises because of a weakness in the manager or colleague who behaves in a particular way towards an individual. In real life, elements of both factors may be present.

The legal definition of harassment is “unwanted conduct which violates someone’s dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment”.

Sexual harassment has a further element to this definition and involves unwanted conduct of a sexual nature, and the conduct has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment.

Responding to harassment in the workplace

For managers who are making a decision on whether workplace harassment has taken place it can sometimes be challenging to appreciate that this involves an assessment of the impact of the behaviour on that individual, rather than the intent of the harasser.

It is often the case in bullying and harassment complaints, that the person accused does not think they have behaved inappropriately at all. They may simply have different views to the person who raised the complaint or have a more robust constitution. Quite often they have been managed in this way themselves and by virtue of learned behaviour they then act that way too. Breaking that chain can then be left to HR to deal with.

The legal test of harassment - that says that the conduct should be unwanted - does not mean that the individual who is being harassed has to actively tell the harasser that the conduct is unwanted.

In Munchkins Restaurant Ltd and another v Karmazymn & ors the harasser tried to argue that his behaviour was not unwanted conduct because the claimants had engaged in his discussions which had involved sexual content. In this case four waitresses who were migrant workers claimed that they were subjected to years of sexual harassment by the owner of the restaurant Mr Moss. They were required to wear short skirts and Mr Moss would have discussions with them involving content of a sexual nature and asking them about their love lives. They had complained to the manager but he said nothing could be done. Events reached a conclusion with Mr Moss shouting at Miss Karmazyn. All four ladies resigned and claimed constructive dismissal and sexual harassment. Mr Moss argued that the conduct could not be unwelcome because the claimants had also engaged with him in talk of a sexual nature. The EAT rejected this argument, explaining that the claimants had engaged in these discussions to distract Mr Moss. The fact that the claimants had to put up with the behaviour did not make it welcome, this behaviour was still sexual harassment.

It is also not necessary to have a course of conduct to bring a legal claim for harassment. A one off remark can also amount to harassment. In one case the EAT ruled that a comment to an Indian female manager that they would “probably bump into each other in future, unless you are married off in India” amounted to harassment under the Race Relations Act 1976 and awarded her £1,000 in injury to feelings.

Tribunal complaints can also arise where somebody does not share the particular protected characteristic but finds the comment offensive. For example, a heterosexual male could make a complaint that a colleague made homophobic remarks to them.

Longer term solutions?

Ideally employers want to have systems in place to respond to problems before internal complaints or in the worst case scenario tribunal complaints are raised. Annual or bi-annual anonymous employee surveys can be a good way of identifying problems around bullying or harassment in teams or hot-spots with individuals in a business.