Allegations of sexual harassment are often one of the most widely reported HR stories covered by the media when they come before an Employment Tribunal – and arguably one of the most damaging. But what should businesses and HR teams do to try and prevent such allegations in the first place and also to stop them hitting the headlines for all the wrong reasons?
Here, Beverley Sunderland, managing director at Crossland Employment Solicitors, outlines five things employers can often do better.
Have a clear policy
This needs to say that sexual harassment in the workplace will not be tolerated, amounts to gross misconduct and is likely to lead to dismissal.
While employees should not need this spelling out to them, having a policy makes your organisation’s position on sexual harassment crystal clear. It also means an employer can point to the policy should they face an Employment Tribunal, confirming that the employee was aware of the consequences, and so if there is reasonable grounds for believing there has been sexual harassment in the course of employment, dismissal without notice will be fair and reasonable.
It should be remembered that there are two different types of sexual harassment: sex related harassment and conduct of a sexual nature. Conduct of a sexual nature is things such as unwelcome sexual advances, touching, sexual assault, sexual jokes, displaying pornographic photographs or drawings, or sending e-mails containing material of a sexual nature. Sex related harassment is ‘sexist’ behaviour such as putting tools up on a high shelf so that the women, who are generally shorter, cannot reach them. Sometimes the behaviour might be both.
Any policy should make clear that use of the word ‘banter’ to excuse sexual harassment in the workplace will not be tolerated.
Give training to all employees
Training needs to focus on how sexual harassment is unacceptable in the workplace. Make sure that all employees attending, sign to say they have completed the training.
When an employee brings a claim against their colleague as the alleged harasser, they will usually join in the employer to the claim on the grounds that the employer is vicariously liable for the actions of their employees which occur in the course of employment.
However, an employer will have a defence to any such attempt to join them into these proceedings if they can show that they have taken all reasonable steps to prevent the employee carrying out these acts. This can be demonstrated through a training programme and the signature of the employee to show that they attended. Many employers now have online training programmes and it is not enough to simply have a handbook or policy, to succeed in this defence the employer must have also taken positive steps over and above this.
An employer should be prepared to admit to an employee that they believe there has been sexual harassment. Businesses will often shy away from making this admission, thinking that it will get them into trouble. However, if there is clear evidence that sexual harassment has taken place then admit it and deal with it. Otherwise, the employer is handing the victim a constructive dismissal claim because the harassed employee will say that no reasonable employer could have come to this conclusion based on the evidence. Whilst the harassed employee may seek an injury to feelings award from the employer, if they can show that the employer is vicariously liable for the actions of a fellow employee, experience has shown that generally the victim is pleased to have been believed and that action has been taken and they do not seek compensation from the employer.
Act consistently – regardless of rank
Acting inconsistently can turn a fair dismissal into an unfair one. Therefore, if action is not taken against a senior director found to have committed sexual harassment but a more junior manager is dismissed, then this will be an unfair dismissal.
Do not make assumptions based on the gender of the complainant
The starting point is that men can be harassed by women, or there can be same sex harassment. All such allegations should be treated in exactly the same way.
Often an employer will be more inclined to believe a woman in any allegation of sexual harassment against a man. There is always a difficult balance because an employer must treat any such allegation seriously and sensitively but often harassment happens when two individuals are alone, and so it will often be one word against the other.
However, if a woman is believed without any other evidence to support her allegations, then this may lead to a claim for sex discrimination by the accused man, who will say that the employer has made stereotypical assumptions that men will always be the harassers.
All such allegations should be treated sensitively, confidentially and consistently and evidence sought. If a woman is saying that things are said to her when she is alone in the office with a man, then encourage her to record the conversation. Ask to see texts and emails and consider covert CCTV monitoring to obtain evidence to support what is being said. This can be justified under Data Protection laws as there is an allegation of a breach of policies and the law.