Whilst it may be tempting to think of the recent flood of sexual harassment complaints as being confined to Westminster or Hollywood, these problems are likely to be suffered by employees across the country. Will these high profile cases hitting the news therefore result in a barrage of complaints by employees? How should employers respond and should they take the opportunity to ensure their own house is in order? Tony Hyams-Parish, Employment Partner at DMH Stallard, provides some useful guidance to employers on what they can do to avoid similar problems and what should happen if do they receive a complaint.
With complaints of sexual harassment ranging from touching a knee, calling someone “darling”, up to serious cases of sexual assault, it is important for employers to be very clear with employees where the line is drawn between innocent acts, which would unlikely be defined as sexual harassment, and other types of behaviour that do or could fall within the meaning of sexual harassment.
What is sexual harassment?
Sexual harassment occurs where someone engages in unwanted conduct, either of a sexual nature or related to the sex of the complainant; and that conduct has the purpose or effect of either violating the complainant’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for him/her. In deciding whether conduct has the above effect, the victim’s perception is clearly relevant, but also whether it is reasonable for the conduct to have that effect. Both men and women can complain of sexual harassment.
A common sense approach should be taken to deciding whether behaviour is of a sexual nature, or related to the fact that the complainant is a man or woman (as applicable) and in most cases it will be obvious. The victim’s view of whether the behaviour is sexual or not should be explored carefully and employers should be wary of easily dismissing the complainant says as being over-sensitive or unreasonable. Indeed, if the behaviour is unwanted and unacceptable, an employer should ensure that it stops, whether it is defined as sexual harassment or not.
Single incidents of harassment
It is important that employers understand that one incident alone is sufficient to bring a claim of sexual harassment. Unlike other harassment laws, a course of conduct or repeated pattern of behaviour is not a condition of bringing a claim. However, employers should take comfort from the fact that most claims are brought in respect of serious allegations of harassment or there has been a course of conduct which may not have been appropriately dealt with by the employer. In most cases, there is an opportunity to deal with complaints internally, to the satisfaction of the complainant, without it going inevitably to the employment tribunal.
Historical claims of sexual harassment
The current news stories may well encourage employees to report instances of sexual harassment they have suffered, possibly going back some time. If this happens, employers need to ensure that they don’t dismiss complaints simply because they are too old. If the alleged perpetrator is still in the business, there is no reason why they should not be investigated in the same way albeit the complainant’s views should be taken into account. S/he may want no action taken, particularly if the harassment has stopped, but a view should be taken, based on the seriousness of the incident, whether such behaviour ought to be investigated notwithstanding the complainant’s desire to take no action at all.
What should employers be doing now?
Employers may want to take this opportunity to consider how robust and effective their current policies and procedures are in dealing with complaints effectively and sensitively, and in giving employees the confidence to come forward to complain. If these have not been updated for some time, now might be the opportunity to do so. Employers may also undertake a risk assessment of the likelihood of problems on the ground. Managers will hopefully have their ear to the ground and will form a view on the culture of the business and whether proactive steps should be taken. This may include a programme of training all staff on identifying harassment, tacking discriminatory attitudes in the workplace and understanding what behaviour is acceptable and unacceptable in the workplace.
What should employers do if there is a complaint?
If this happens, employers should:-
- take all complaints seriously and investigate complaints no matter when they occurred or who the allegations are against
- ensure they have effective procedures in place which address how the complainant and witnesses should be spoken to and which deals with important issues such as confidentiality
- ensure that people involved in investigation and dealing with such complaints are properly trained
- not fall into the trap of dismissing a problem as one person’s word against another
- take legal advice on the process as employment tribunal claims can often be avoided.
How can we help?
The employment team at DMH are experts in handling sexual harassment complaints. We provide a range of training courses helping managers identify problems and handle problems when they arise. We can also help you with drafting appropriate policies and procedures.
If you wish to discuss this with us or ask anything about sexual harassment, please contact Tony Hyams-Parish see below for contact details, or your usual contact in the employment team.