It has only been a few weeks since accusations of sexual harassment against Harvey Weinstein (one of the best known film producers in Hollywood), first came out in the New York Times. This started a flood of accusations against Weinstein and others, which spread to the UK with members of our Parliament facing allegations of inappropriate behaviour.
Weinstein was fired from his own company and, here in the UK, Defence Secretary Sir Michael Fallon was forced to resign from his cabinet position after allegations of unacceptable behaviour began to emerge. Most recently, Welsh government minister, Carl Sargeant was found dead following allegations of harassment made against him by three women.
Sexual harassment in the workplace is a form of sex discrimination and is covered by the Equality Act 2010, which defines sexual harassment as unwanted conduct of a sexual nature which has the purpose or effect of violating someone’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for them.
The Equality and Human Rights Commission’s Employment Statutory Code of Practice explains that “conduct of a sexual nature” can include unwelcome sexual advances, touching, forms of sexual assault, sexual jokes, displaying pornographic photographs or drawings, or sending emails with material of a sexual nature.
With the #metoo Twitter hashtag giving encouragement to people to speak out about their experiences and the almost daily revelations in the media about unwanted sexual conduct, some going back years if not decades, it may only be a matter of time before employers outside of the worlds of politics and entertainment start seeing an increase in complaints.
How should employers address harassment issues?
Prevention is always better than cure and employers should, as a minimum, ensure that they have effective policies in place and that they have trained staff on what kind of behaviour is unacceptable.
In a relatively recent employment tribunal case[i], however, the tribunal observed that “simply referring to training and policies is not sufficient” and that the employer had not taken any steps to prevent the culture of sexual banter in the workplace, allowed a manager to actively participate in and encourage this, and failed to take any steps when the employee made numerous allegations regarding her manager’s behaviour in a formal grievance.
Employers should ensure that a culture is created where everyone is treated with dignity and respect and that instances of unacceptable behaviour are dealt with promptly, fairly and consistently. Failing to deal adequately with a grievance may lead to claims of constructive unfair dismissal and, it should be borne in mind, treating someone less favourably because they have raised a complaint about sexual harassment (even if the complaint was not upheld) is also unlawful discrimination.
How should sexual harassment complaints be dealt with?
First, take any such allegations seriously. This doesn’t mean that the employer needs to be overly heavy-handed, but it is important to make sure that there is a proper investigation into what has happened. This must be handled sensitively and should, as far as possible, protect the confidentiality of everyone involved. Secondly, be prompt. It is important to find out details of what has happened as quickly as possible so that appropriate action may be taken. The longer matters are left to lie, the more likely it is that employees will become increasingly aggrieved, leading to threats of legal action. Thirdly, be open-minded. The complaints need to be investigated by someone who is completely impartial and who can gather and weigh up all of the facts before reaching a conclusion. It can be tempting to side with one party or another, especially in “he said, she said” situations, but an employer who can leave aside such a temptation is much more likely to be able to prevent legal action, protect its reputation and create a more productive, engaged and happy workforce.