You would have to have been in a very remote internet and radio free location to have failed to notice the swell of attention on sexual harassment in the workplace currently absorbing Westminster but potentially affecting any workplace as the use of the hashtags #MeToo and #MenToo, have proven with thousands telling stories of what has happened to them. My prediction is that all the news attention focused on this issue is likely to give ordinary employees more confidence to speak out and that we are going to see a spike in grievances and allegations.
What can you do to prepare?
You will be expected to demonstrate that you took ‘reasonable steps’ to prevent harassment in the workplace (your defence under the Equality Act 2010). These might include:
- providing training for employees (including managers and supervisors) on appropriate behaviour at work, including in relation to equal opportunities and harassment;
- having an equal opportunities policy and an anti-harassment and bullying policy;
- regularly reviewing and updating those policies;
- making those policies known to employees and providing training where necessary;
- applying and implementing the policies appropriately and consistently;
- ensuring employees know how to raise issues – informally and formally – perhaps by providing a confidential reporting line;
- providing HR support to those who do wish to raise issues;
- making sure that steps are taken to address complaints promptly and reasonably; and
- taking disciplinary action where appropriate against offenders.
Anything done by an employee in the course of their employment is treated as being done by the employer unless you can establish this defence. This is the case even though you wouldn’t have authorised the conduct in question. Remember the definition of harassment is “unwanted conduct related to sex or conduct of a sexual nature that has the purpose or effect of violating that person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for them” and less favourable treatment may occur because the employee has rejected or submitted to such conduct.
Employers should note that a single incident can be sufficient to constitute harassment. If the conduct is serious enough to be reasonably considered as harassment, there may be no need for the victim to have already made it clear that the conduct is unwarranted. The Employment Appeal Tribunal has said that would-be harassers should not be allowed to ‘test the water’.
Whether an act amounts to harassment may be a fine line in many cases. The fact that an employee has put up with such conduct, or taken part in such ‘banter’, will not necessarily show that the conduct is wanted – this may be a coping strategy. People are entitled to say when a line has been stepped over. Furthermore, harassment may occur at the end of a consensual relationship if conduct becomes unwanted and this can cause issues where a workplace relationship breaks down.