#MeToo has been trending over the last few months and it has enabled an unprecedented number of sexual harassment victims to come forward. The high-profile comments made by the likes of Angelina Jolie and Gwyneth Paltrow against equally high-profile offenders such as Harvey Weinstein have brought the under-reported issue to the forefront of topical issues.
What is harassment?
Sexual harassment is a form of discrimination. Harassment (in this context) can be a single act of unwanted treatment that may degrade, humiliate, offend or intimidate another person – male or female. Treatment of this nature is unlawful. The Equality Act 2010 prohibits discrimination against a person on the grounds of sex.
Claims and employer liabilities
Under this Act employers can be liable for a claim if they did not take reasonable measures to prevent the harassment. This means that employers are required to do what they can to prevent such treatment and if they should become aware of an issue it must be dealt with robustly, with urgency and with sensitivity. Employers also have vicarious liability for harassment that takes place ‘in the course of employment’. You may be surprised to find out that the course of employment can include everyday situations such as after work drinks (see: Chief Constable of the Lincolnshire Police v Stubbs et al).
Overcome the fear of reporting
As above, revelations in the press have demonstrated that currently there is a severe problem around sexual harassment. Troublingly, it seems that many people struggle to come forward on their own to report what has happened to them. Be sure that your employees are reassured that they would be supported if they ever experience treatment such as this.
Below are some tips you can take now as an employer to overcome reservations and concerns your employees may have about telling you they have been sexually harassed by a colleague, or anyone else, during the course of their work.
8 top tips to beat the fear of reporting
1. Publish a clear zero tolerance statement and circulate it to all staff.
2. Be sure that all your staff know of two senior people that they can confide in if need be.
3. Make sure you have a harassment policy that is reader friendly, sets out clear steps that someone in distress could feel are achievable. The policy should not deter people from coming forwards (i.e. explaining possible outcomes for the accused may induce feelings of guilt – put these in the disciplinary policy instead)
4. Adopt an open-door approach to encourage employees to speak to their line managers.
5. Raise awareness tell your staff what sexual harassment is (give examples) and explain your policy about what to do if they experience it. Break down the stigma and get them talking about it.
6. Invest in training for both managers and staff so that they can recognise harassment and deal with it effectively.
7. Explore unexpected resignations including any that allude to a workplace issue.
8. Look into stress-related absences and check if there is anything going on at work you should know about.
Once you are aware of an issue, whether the alleged victim(s) want you to take action or not, employers have an immediate duty of care to protect the member of staff and to prevent any further harassment or victimisation. Victimisation is detrimental treatment directed to a person who has made or supported a complaint about discrimination. This means that employers will still need to take steps to investigate the claims thoroughly and take an appropriate level of disciplinary action if required.
Potential issues and frequent questions
- Do you tell the accused?
Yes, you will need to speak to them about it. It may be that you need to speak to them immediately with a note taker present. This is so that you can quickly determine the requirement to suspend. If a brief conversation convinces you of their innocence it may be that no further action is needed. However, if you are in any doubt whatsoever, you will need to give them brief details of the reason for suspension, pending further investigation.
If the person reporting the harassment is uncertain of whether they are being harassed or not, tell them what constitutes sexual harassment. Ask them to tell you what has happened so that you can decide if it is sexual harassment. Only if they choose not to tell you or they wish to think about whether it is making them uncomfortable, should you agree not to speak to the accused. You should arrange a catch-up meeting soon to see how things are going.
- The employee resigns, and you know or suspect the reason is because they have been harassed or accused of harassment
You should give your employee a cooling off period. Put in writing that you want them to reconsider their decision and that you want the opportunity to put things in place to keep them at work. If you have had to discipline an employee, explain that you have acted in accordance with procedures but that they may appeal if they felt that the outcome was not fair.
- The employee goes off sick
With the employee’s agreement you should continue to run your internal Harassment or Grievance procedure, offering meetings in a neutral location if preferred. You should also continue your investigations into the alleged misconduct. You should agree a level of contact with your employee, so they don’t feel abandoned, but equally feel they are being given a chance to get better.
- Managing the relationship between the employee and the accused employee
This is tricky however you should have been able to decide from the outset whether it is necessary to suspend the accused. Although it may feel unfair, avoid taking any precautionary measures that may seem punitive against the accused, before your disciplinary process is complete. Otherwise it may appear that you have pre-determined the outcome. Instead, ask your employee what would make them feel more comfortable and accommodate it where possible e.g. moving desks, changing lunch breaks, working a different shift etc.
- Managing the relationship between the employee and the accused external third party
Contact the accused’s line manager and explain your concerns so that they can undertake their own investigations. It may be that they can send an alternative person, you choose another provider, or that you send someone else to work with the third party.
Join us on 12 December, 11am for a free one-hour webinar – ‘Sexual Harassment, The Party Season’.
Sexual Harassment Webinar (Free)
If you are unable to attend the free live webinar on Sexual Harassment from HR Solutions, you can watch a recording afterwards which will be uploaded onto their webinar archives at: www.hrsolutions-uk.com/resources/videos-webinars-archive.
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