The direction of travel is clear: society will no longer turn a blind eye to harassment and behaviours need to change- the approach in the workplace has to reflect this trend. The government has agreed that a statutory Code of Practice on sexual harassment in the workplace should be introduced and is consulting on introducing a mandatory duty on employers to protect employees from harassment, underpinned by enforcement action. So enlightened self-interest may encourage businesses to be a driver not a passenger.
Most employers state they take a zero tolerance stance to harassment and will treat a formal complaint seriously. We consider why this may not be enough and why, legally, employers need to take a closer look at their workplace culture and how they can avoid issues before they arise.
WHAT CAN CONSTITUTE HARASSMENT?
The legal definition of sexual harassment is “unwanted conduct of a sexual nature, that has either the purpose or effect of violating that person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them”. Harassment may therefore take place even if the harasser has no negative intention. In some circumstances harassment can be a one off incident. Behaviour relating to another protected characteristic, such as someone’s race or disability can also constitute harassment.
Sexual harassment can include physical conduct or making sexual advances, but can also extend to other behaviours including sexual comments, banter, innuendo or sharing pornographic images. A serious continued course of harassment can also give rise to a criminal offence.
WHAT ARE THE LEGAL OBLIGATIONS ON EMPLOYERS?
All employers have a duty to protect the health and safety of their staff, including protecting them from sexual harassment. Employers can also be legally liable for the harassment of their staff in the course of employment (even if it occurs outside of the office), constructive dismissal claims where the employee has resigned, and potentially personal injury claims. Like all discrimination claims, damages for sexual harassment claims are uncapped.
The legal obligations may also increase in light of current trends. Restrictions on “NDAs” (non disclosure agreements) may lead to employment contracts being updated, as well as impacting the use and contents of settlement agreements.
HOW CAN AN EMPLOYER DEFEND A SEXUAL HARASSMENT CLAIM?
An employer will have a defence if it can show it took reasonable steps to prevent harassment. Note that this is preventing the harassment, not resolving a complaint once raised- by this time it can be too late to avoid liability. Employees should consider taking the following action:
- Implementing clear policies;
- Actively training staff to promote an environment that does not tolerate any form of harassment;
- Engaging with staff to discuss what is and is not acceptable behaviour and to find out if and where there is a problem;
- Having clear and open channels to raise complaints; and
- Dealing promptly, in accordance with policy, with any allegations of harassment, even where simply suspected, raised “informally” or where not raised directly by the “victim”.
The above action points will also assist employers in addressing historic complaints as they will make it more difficult for an employee to justify why they did not raise the issue at the time.
It is worth remembering that a finding of bullying and harassing can have devastating consequences for an individual. It can therefore lead to claims from the accused, to whom, in the heat of serious allegations, employers can sometimes forget that they also owe obligations. A thorough and well-handled investigation with a balanced conclusion is key.