The view from HR: sexual harassment and how organisations need to change

sexual harassment claims and how employers can create a better culture

It’s fair to say that Hollywood and Westminster are atypical places to work. But when it comes to sexual harassment, many claims go unreported in workplaces across the globe. So, why is that, asks Misbah Malik, employment solicitor and HR consultant, and what can employers do to bring about change? 

In light of the recent sexual harassment claims hitting the headlines from Weinstein to Westminster, there has been a spate of stories about sexual harassment in the workplace. As Westminster and Hollywood don’t have a typical structure, in that there aren’t HR departments as such, the reporting of abuse, harassment and bullying may have gone unreported due to individuals not knowing where to turn.

Misbah Malik, employment solicitor and HR consultant.

However, in the majority of the organisations in the UK, a human resources department exists along with policies and a staff handbook which communicate to employees how any complaints should be made. Why then do so many cases go unreported or if they are reported, why is the correct action not taken?

The answer is that it is only when the dynamics of an organisation reforms can real change take place. This means it’s when executive or leadership committees recognise that this issue is pertinent and the abuse of power by individuals could have legal and reputational ramifications and they further ensure that the culture is not a breeding ground for abusers.

As an Employment lawyer and HR consultant, I have heard of cases where individuals are too scared to raise an issue due to fear of their jobs and career progression but also how this affects them personally in terms of embarrassment and shame and moreover their safety. Employers and lawyers cannot ignore that some sexual harassment cases may not just be an issue of employment law but ones that pass the criminal and human rights threshold.

The recent high profile cases from the venture capitalist firm 500 startups and Uber, should serve as a reminder to employers to take cases of sexual harassment seriously and act when issues arise. However, sometimes the abuse of power by certain individuals in an organisation is often covered up due to a ‘big boys club’ culture and this prevents many employees from voicing their concerns.  As a consequence employees who are victims of harassment may often leaving organisations or enter into settlement agreements after being dissuaded by the employer from bringing claims.

Employers should ensure that investigations are conducted in an open, fair and transparent manner and that individuals are clearly told that any behaviour involving harassment and bullying will not be tolerated by the employer. Although it could be commercially attractive to conceal the actions of certain individuals due to the ‘results’ they bring to the organisation and hence financial benefit, employers need to promote the message of law, ethics, values and equality and ensure these prevail.

It is therefore crucial that investigations are robust in order to deal effectively with a harassment claim but firstly we need to address what constitutes harassment?

What is Sexual Harassment?

Under the Equality Act 2010, sexual harassment is defined 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.

It can take place in the workplace, at a work social event, on a work trip or at a client/customers’ workplace by anyone from a manager, colleague or customer.

In order to prevent sexual harassment it is therefore imperative that employers develop a positive environment where employees are encouraged to report any cases of sexual harassment and are confident that there concerns will be taken seriously and dealt with in a sensitive and confidential manner.

Employers should maintain and communicate policies on harassment, bullying and victimisation and also details what the employers standards are in this regard taking into account the legal parameters and company values. These policies should be maintained and communicated to all employees in the organisation and explained in the induction process to new employees.

What happens once you receive a complaint or claim?

  • An employers first consideration should be to ensure that their polices are up to date and fit for purpose to investigate concerns.
  • Employers should train their staff on equal opportunities and in particular what constitutes unacceptable behaviour in the workplace.
  • Employers should also create an environment where individuals aren’t afraid to speak up.
  • The investigation should be thorough and look at consensual versus non-consensual behaviour. It is important to note that in organisations there may be consensual dating and relationships but the investigation should look into when and if consensual became non-consensual and therefore didn’t warrant any inappropriate behaviour.
  • Employers should interview witnesses and take statements and in some cases, emails and other correspondence may need to be monitored (subject to the data protection laws).
  • Employers should deal fairly with the claim or complaint and the finality of the outcome should match the actions of the perpetrator.

An Employment Tribunal will look at a number of factors when considering whether the act is a form of harassment, such as the employee’s perception, and whether the circumstances of the case deem it to be harassment.

The way an employer will resolve the issue will depend on the merits of the case but the quality of the investigation and the fact that an individual feels comfortable to speak up is of paramount importance when discussing the serious issue of sexual harassment in the workplace.

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