Preventing Sexual Misconduct at Work

A recent study has shown that around half of employees who have experienced sexual harassment at work haven’t reported it. This leaves you with a huge risk in your business, employees may feel they are unable to report it but will feel disengaged which will have a detrimental impact on their motivation, well-being and productivity. Of those who did report it, half said that their employer didn’t take it seriously – so would you know how to handle a complaint of this nature?

What the law says:

The Equality Act 2010 defines sexual harassment as unwanted conduct of a sexual nature, which has the purpose or effect of violating someone else’s dignity or creating an intimidating hostile, degrading, humiliating or offensive environment for them.

Note that the law clearly says PURPOSE or EFFECT, often in such cases the investigation will show that the individual did not intend to cause offense, however, the law is clear that it is the effect not the intent of the actions that is important. This creates a huge discussion point for employers around the topic of ‘banter’, you want to create an environment which is fun, however, banter cannot be allowed if it steps over boundaries set out by law and it is your responsibility to find that balance in the culture of your organisation, which is not an easy thing to do!

Adding to this you may also be held liable for:

• Conduct that is unwanted, even if the individual did not tell the other party the conduct was unwanted
• A one-off act of harassment
• Verbal harassment
• Behaviour that is not actually directed at anyone but can cause offense
• Harassment by third parties such as your customers or suppliers (unless you can demonstrate you took all reasonable steps to prevent it)
• Harassment that took place outside the workplace (ie at a conference or client premises)

Preventing cases of sexual harassment:

The key to any culture of prevention is to ensure that employees are able to speak up (both in terms of process and in terms of being heard). To support this:

• Put in place a dignity at work policy or standalone sexual harassment policy which sets out examples of unacceptable behaviour, informal and formal ways of reporting this and timescales for dealing with such a complaint. It should be clear in the policy that all complaints will be treated seriously and there will be no reprisals for making such a complaint.
• Make sure everyone is aware of the policy, include it in your handbook and ensure new employees are aware of this in the induction
• Offer training to all managers on Equality and Diversity and have them think about how they will manage things such as banter – we run this with many of our clients and it is extremely effective as a way to prevent expensive claims
• Ensure that senior managers attend this training to lead from the top and demonstrate the importance of it
• Encourage managers to discuss welfare matters in 121s and appraisals – it is important to not just focus on KPIs and task
• Act promptly to any complaint (either formally or informally raised), speak to the individual to understand exactly what has happened and conduct an investigation. Consider separating the individuals or even suspending the alleged harasser to prevent any further misconduct
• Be prepared to deal with all cases, even if this is a senior person. In cases like this everyone must be treated the same and that could mean a case of gross misconduct if the investigation shows sexual harassment has occurred.

There is currently a law review happening for cases such as this which, if approved, will see the law becomes even more focused on preventing such conduct including increasing the time an ex-employee has to take a tribunal case, increasing maximum payouts, banning confidentiality clauses relating to sexual harassment and enabling a judge to make recommendations concerning the wider business not just the claimant.

If you are unsure what to do and need any support please contact us. We can also offer you engaging training with real life examples to help your managers positively manage all aspects of the Equality Act 2010.