In recent months numerous high profile sexual harassment cases have attracted significant media attention. Various household name organisations have been attacked for the way in which they have handled such allegations, many of which relate to incidents in the workplace. This has led to employers reviewing their approach to how they seek to avoid and deal with sexual harassment, to try and minimise the risk of an employee being able to successfully allege either that the employer did not take reasonable steps to prevent it, or that investigations were mishandled or insufficient.
In our available to view webinar on the subject we looked at a brief recap of the law in this area across Europe, as well as some of the methods employers can use to try and minimise the risks.
But first, the law
The law in relation to sexual harassment is detailed in the Equality Act 2010.
In the UK, sexual harassment occurs where there is unwanted conduct of a sexual nature which has the purpose or effect of either violating the victim’s dignity, or creating an “intimidating, hostile, degrading, humiliating or offensive environment”.
In deciding whether there has been sexual harassment, the employment tribunal must consider the effect on the victim, the other circumstances of the case, and whether it is reasonable for the conduct to have that effect. This means that, although “I didn’t mean it, it was just banter” will not work as a defence to most instances, where the individual was genuinely upset by the incident, there will be no harassment if the victim is genuinely unreasonably offended or “hypersensitive”.
In contrast to some other countries, in the UK a single act can be harassment – there is no requirement that there is a continuing campaign. This makes it especially important for employers to have clear policies and procedures in place.
Individuals are also protected where they are treated less favourably for either rejecting or submitting to sexual harassment, and from victimisation where the employer suspects that they either have or are about to make an allegation or claim that the employer has breached the Equality Act.
False allegations are not protected
Giving false evidence or information, or making a false allegation, is not a protected act if the evidence or information is given, or the allegation is made, in bad faith. Employers should make clear that a person who lies about sexual harassment may themselves be subject to disciplinary action. However, a person who complains mistakenly but in good faith is protected.
“But she didn’t say anything at the time!”
Whilst it is often presumed that those who have said nothing about inappropriate behaviour in the past (or even been complicit in it) may not later be able to bring a successful complaint, that is not the case.
The EAT has held (in Munchkins Restaurant Ltd and another v Karmazayn and others (2009)) that just because an employee has put up with something for years, it does not mean that it cannot be unwanted.
In addition, employees may succeed in sexual harassment claims when a consensual relationship ends and the other party’s conduct then becomes unwanted (A v Chief Constable of West Midlands Police (2014).
How useful are “love” contracts?
Whilst they are fairly commonplace in the US, they are not very common in the UK.
Many people meet their future spouse at work. There are no general legal rules which prevent or govern relationships at work, but employers may be concerned about the legal and practical issues which can arise.
A love contract requires two colleagues, who are in a relationship, to confirm that they agree to, and have not been coerced into, a relationship. The rationale is that they may help prevent successful sexual harassment claims should the relationship not work out.
Such contracts will not provide the employer with a complete defence to a sexual harassment allegation and could infringe on privacy rights.
In the UK, it is more common for employers who are concerned about relationships between co-workers to include a policy on romantic relationships in their employee handbook. Such policies set out guidelines around confidentiality, expected standards of behaviour, and disclosure of relationships where, for example, one colleague is the manager of the other.
We would also suggest that employers incorporate additional policies, such as equal opportunities and anti-harassment and bullying policies into their handbooks, and provide regular training on the topic so that employees clearly understand the employer’s approach to harassment, and know how to raise it if they do have a concern.
How to carry out an investigation
The first thing to do will be to refer to the company policy, if there is one in place, and try as far as is reasonable to investigate the allegations in line with the policy. The procedure could be found in a standalone harassment policy or in an equal opportunities policy or in the company’s investigation and disciplinary procedures.
One thing to remember here will be that, just because the allegations may be historic (as we have seen recently in the media), it does not mean that they should not be investigated. Employers should approach historic allegations in much the same way as recent ones, and still do what they can to investigate.
Having reviewed the relevant procedure, the employer will need to consider who should carry out the investigation. Investigations into sexual harassment allegations can be particularly sensitive, and we are seeing more and more employers instruct independent third parties to carry out such investigations for them, in order to avoid any allegations of bias or unfairness. This is something we at Taylor Wessing can assist with in appropriate circumstances.
Share information only as far as necessary
Consider who should be made aware of the allegations, the investigation, and any subsequent disciplinary proceedings.
Generally, individuals should only be made aware on a “need to know” basis, in so far as it is necessary to safeguard the interests of both the accuser and the accused. If it is necessary to interview third parties, careful consideration should be given to whether the allegations can be investigated on an anonymous basis, so that third parties are not made aware of allegations against specific individuals.
The employer should consider quite early whether or not suspension, or changes to working arrangements, are appropriate.
Suspension should not be a knee-jerk reaction. Before taking a decision to suspend, employers should consider whether it is justified, or whether they can still safeguard their employees without suspending the accused, whilst the investigation is undertaken. For example, if the employer could simply ask the accused to work from a different office, or even from home, whilst the investigation is ongoing, this is likely to be preferable to a default suspension.
Once the investigation has been carried out, the investigator will usually make a recommendation as to whether a disciplinary process should be invoked. If so, the employer will need to bear in mind the rights granted to employees under their disciplinary procedures, such as the right to be accompanied at the meeting.
The employer will also need to consider what evidence it might be helpful to refer to throughout the disciplinary process, and whether witness evidence is required. If so, care should be taken to protect the identity of witnesses, to the extent that that this is appropriate and can be achieved.
If someone is found to have sexually harassed a colleague, the hearing chair will need to carefully consider the appropriate level of sanction. Many employers adopt a zero tolerance policy in instances of sexual harassment but, as always, reasonableness will always be fact dependent.
Next steps for employers
Employers will be generally be held liable for the actions of their employees in the workplace and may also be held to be liable for the actions of third parties (such as suppliers, customers etc.) The company has a defence if it can show that it took all reasonable steps to prevent the relevant act. As such, it is vital that companies put in place measures to evidence the steps taken to avoid acts of sexual harassment in the workplace. This includes:
- Ensuring a detailed and up to date policy is in place and available to all employees;
- Putting in place harassment and equality training for all employees including specific training regarding dealing with allegations of harassment for staff at management level and in HR;
- Promoting inclusive and appropriate behaviour at work; and
- Dealing with allegations or concerns promptly and sensitively.
For further guidance, Acas (the impartial conciliation service on employment matters) has recently published a guide on what constitutes sexual harassment and the reporting procedure.