Sexual misconduct allegations and what it may mean for employers

To say that allegations of sexual misconduct against powerful players in the film industry and Westminster have been in the spotlight recently is an understatement.  Whilst the areas of media and politics have had the most exposure, perhaps due to the high profile names and attention grabbing headlines, these industries are not alone in being vulnerable to complaints of sexual harassment. In fact, according to research carried out by the TUC last year, more than half of women say they have been sexually harassed at work.

Although it has been unlawful for many years, a surge in awareness and confidence in raising concerns, perhaps due to the growth of social media campaigns such as #MeToo,sexual harassment in the workplace has become a hot topic.  As a result, it is likely that employees may feel more able to raise complaints of current and historical sexual harassment. 

What is Sexual Harassment?

Whilst some behaviour that constitutes sexual harassment (e.g. sexual assault and physical threats) constitutes criminal behaviour, in the employment context sexual harassment is unwanted conduct of a sexual nature which has the purpose or effect of violating the dignity of a worker, or creating an intimidating, hostile, degrading humiliating or offensive environment for them.

Sexual harassment has been held to be unlawful through case law decisions based on the Sex Discrimination Act which came into force back in 1975. Following a European Directive, sexual harassment was specifically referenced in legislation in 2005.  It is now covered by the Equality Act 2010 which enables a worker who feels that they have been sexually harassed to bring a claim against their employer (and potentially the perpetrator) in an employment tribunal.  If successful, the employer and/or the perpetrator could be required to pay the victim compensation in respect of any financial losses caused as well as an award for injury to feelings.

The legal risk of a claim is often secondary to the impact of the allegations on those involved, the culture of the business and its reputation.  Creating a culture where such behaviour is considered inappropriate, where employees feel able to raise concerns early on and where complaints are responded to quickly and appropriately can help employers avoid and manage the risks of sexual harassment complaints.

What steps can employers take to reduce the risks of sexual harassment claims and protect staff?

We set out below some steps to consider having in place:

1. Establish a culture of zero tolerance by ensuring there are appropriate and well publicised and enforced equal opportunities and anti-harassment policies making it clear that this behaviour is not acceptable.  Also have clear whistleblowing and grievance policies enabling employees to raise concerns. As with other areas of discrimination, employers can be liable for the acts of their employees (as well as third parties) but they can avoid this risk if they can demonstrate that they took all reasonable steps to prevent the harassment. This can be quite a high burden for employers but is likely to include having appropriate policies in place, training staff and contractors, encouraging the reporting of harassment and taking action on complaints.
2. Train your staff - As well as helping show that an employer has taken reasonable steps to prevent harassment, educating your work force about standards of acceptable behaviour can help improve standards of behaviour and give staff the confidence to raise issues if they are not being adhered to.
3. Take complaints seriously and fairly and investigate thoroughly - All allegations of sexual harassment (regardless of who they are against or when they took place) should be taken seriously and should be investigated professionally, thoroughly and quickly in the interests of all parties.  A complainant is not required to prove the allegation at the investigation stage which is about gathering information and evidence.  Some matters may warrant or require criminal investigation.  An employer may need to decide whether to involve the police and whether to continue with their own investigations (whilst not prejudicing the criminal proceedings) or put them on hold while criminal investigations are conducted.
4. Follow procedures – Relevant procedures such as whistleblowing, grievance and disciplinary procedures should be followed consistently to ensure all appropriate steps are being taken in all cases.  These should be compliant with the ACAS codes on grievance and disciplinary procedures. ACAS has also recently updated its guidance on sexual harassment investigations.
5. Provide support - Experiencing sexual harassment is very distressing for the worker involved. Employers should seek to make the process as stress-free as possible e.g. allowing plenty of time and a private space for meetings and potentially allowing a friend or family member to attend.  The process may also be distressing for those who witnessed it as well as anybody who is being accused of sexual harassment.  Access to support should be provided to those concerned e.g. a confidential helpline through an Employee Assistance programme.
6. Take appropriate action – It is sometimes helpful for the employer to discuss with the worker what they would like to see happen. Whilst this may not always be the outcome, if a complaint is upheld, the victim should be informed where appropriate what steps will be taken against the harasser and how the victim will be supported and protected going forward. What will be the appropriate action will depend on the circumstances such as the nature of the allegation and the perpetrator's previous conduct.  It may be a warning or it may be so serious as to amount to gross misconduct.  The perception from many media reports covering the high profile allegations in the press is that many businesses look to cover up such claims and enter into settlement agreements.  Settlement agreements have their place e.g. if one party leaves the business as they can ensure a clean break and confidentiality for both parties without recourse to tribunal proceedings which can be distressing for victims. However, they should not be seen as the best default position in all cases.  Businesses that continually settle claims against senior members of staff without investigating them could be papering over a significant problem and putting other staff, as well as their business' reputation, at risk.  Reputationally, a "cover-up" is often more damning than the original event.
7. Plan your media/ internal communications – in the face of any media storm, pre-planning is key.  Ensure your crisis management plan specifically deals with reputational issues, setting out the team who will take responsibility for responding and advising, stakeholders who will need to be notified and possible statements.  Honesty and transparency will be key, the days of "no comment" being long gone.  Remember that in the event of a trial, the media will be free to report matters raised in open court.
8. Social media - many of the allegations emerging from Hollywood and Westminster have first been made public on social media.  Social media monitoring will allow you to respond quickly to online chatter, responding where appropriate to take the conversation offline so allegations can be properly investigated.
9. Reflect – regularly review your company's track record.  Is a pattern emerging?

A few important things for employers to bear in mind around harassment in the workplace are:

• It can happen in a number of ways e.g. in written or verbal comments of a sexual nature (e.g. remarks on appearance, intrusive questions about their sex life, offensive jokes, explicit images, unwanted physical conduct and sexual assault)
• It can happen to men or women and by people of the same or opposite sex
• It can come from anyone, including colleagues, supervisors another member of staff or someone that the victim came into contact with whilst working.Job applicants are also protected and the legislation also protects employees and applicants from being treated less favourably because they reject or submit to harassment.
• It potentially covers harassment by third parties. Although specific provisions dealing with this have been repealed, workers could argue that an employer's inaction relating to harassment by clients or contractors could amount to harassment.
• Employment tribunals take into account the victim's perception as well as whether it was reasonable for the conduct to have had the alleged affect and other surrounding circumstances.
• In this context, a  single incident is enough to constitute harassment and there is no need for the victim to have already made it clear that the behaviour is unwanted.
• The fact that an employee has put up with the conduct for years or initiated banter as a coping strategy does not mean that it is not unwanted.
• Behaviour that starts as consensual can also become unwanted.
• It is unlawful to victimise or subject an employee or worker to a detriment because they have raised allegations of harassment, even if this is inadvertent (for example by forcing them to take a period of special paid leave as this could be viewed as exclusion from the work place, particularly if the accused remains at work).
• Tribunals will usually only be considered at an employment tribunal if the worker makes a claim within 3 months of when the incident took place.  However, where there has been a "continuing act" or an ongoing situation or state of affairs, time limits run from the end of that period.  Tribunals can also extend time limits in some exceptional circumstances.

To learn more please contact the employment team at Foot Anstey.