In recent weeks, there have been many allegations of sexual harassment reported in the media. Numerous actresses have accused Harvey Weinstein, Hollywood film producer, of asking them to engage in sexual acts in exchange for advancing their careers.
Complaints made by colleagues of several MPs, for making inappropriate comments or inappropriate touching have prompted the Conservative Party to introduce a new Code of Conduct for party members. Investigations into the conduct of MPs including Kevin Hopkins and Clive Lewis have commenced and Sir Michael Fallon, former Defence Secretary has recently resigned after a journalist alleged that he had lunged at her and attempted to kiss her on the lips in 2003.
The prevalence of workplace harassment is not limited to certain industries, and is widespread in many workplaces. It is important for employers to understand what constitutes harassment at work, how best to prevent it and how best to deal with it should a complaint be made.
What is Harassment?
There are three types of harassment under the Equality Act 2010:
Harassment: Unwanted conduct in relation to a relevant protected characteristic which has the purpose or effect of either violating someone’s dignity or creating an intimidating, hostile, degrading, humiliating and/or offensive environment.
Sexual Harassment: 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. This may include:
- Sexual comments (verbal and/or written);
- Inappropriate propositions or touching;
- And/or sexual images/pornography.
Less Favourable Treatment (if employee submits to/rejects harassment).
The protected characteristics are: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, or sexual orientation.
A victim of harassment does not need to have voiced their objection to the conduct at the time for the conduct to be considered unwanted.
The unwanted conduct will amount to harassment whether or not the perpetrator intended the conduct to have any of the above effects.
An employer is responsible for the acts of its employees whilst they are at work and has a duty of care to all of its employees. Therefore, a victim of harassment may bring a claim in the Employment Tribunal against both the offending colleague and the business for failing to prevent the harassment.
Employers may be held liable for the conduct of their employees, including conduct which occurs outside ordinary working hours such as at work-related events (e.g. a work Christmas party).
An employer will not be liable for harassment by one of its employees in the work place if it can show that it took all reasonable steps to prevent the alleged perpetrator from doing the alleged act or any other act of the same description. In deciding what is “reasonable”, an employer may consider whether the time, effort and expense of the step is disproportionate to the likely outcome.
Harassment is not only unacceptable on moral grounds but if left or badly handled, it can create serious issues for your business including poor morale, resignations, absences, and damage to the business’ reputation.
To minimise the risks, employers should implement and enforce a workplace policy on harassment. This should set out the business’ approach to dealing with workplace harassment. For example:
- A non-exhaustive list of unacceptable behaviours;
- Prevention measures;
- Reporting channels; and
- Investigation and disciplinary procedures.
However, simply having a policy in place is not sufficient to show that employers took “all reasonable steps” to prevent the conduct from occurring. Employers must ensure that all members of staff are aware of the existence of the policy and take part in regular training on workplace harassment.
To instil and retain employees’ confidence and trust, it is imperative that employers take all complaints seriously and ensure that they conduct a full and impartial investigation into any allegations, attributing appropriate weight to all evidence available to them.
If an employer concludes that harassment has taken place, it must ensure that the disciplinary action taken against the perpetrator is reasonable and proportionate to the circumstance of the case.
If you require any employment advice, Farleys’ experienced employment law solicitors can help. Call us on 0845 287 0939 or email us today.