This article was written by Vanessa James, Joint Head of the Employment department at SA Law.
It seems sexual harassment in the workplace is rarely out of the headlines at the moment, with the recent Liberal Democrat scandal surrounding claims that Lord Rennard behaved improperly to female members of the party again shining a light on the issue.
Workplace banter, staff nights out and a penchant to ‘sweep things under the rug’ can all cause a claim of improper behaviour to spiral out of control and into the tribunals. Even in the case of the Lib Dem scandal, the party admitted it had clear procedures to deal with this sort of behaviour, but protocol clearly was not followed. There are also rumours that certain senior individuals may have known about the allegations – albeit informally.
Being aware of what constitutes sexual harassment and how to deal with claims and rumours is essential for businesses to maintain a positive working environment and to keep disputes out of tribunals (and newspapers!).
Here are some commonly asked questions on what constitutes sexual harassment and how to deal with this issue sensitively and professionally.
Q. My employee complains office banter includes sexual innuendo which offends them – should I step in?
Yes. Sexual harassment constitutes any unwanted conduct of a sexual nature. While this includes fairly obvious harassment like unwelcome touching, it also includes asking colleagues about their sex lives, sexual jokes, innuendo and displaying pornographic photographs or sexual objects.
This so-called ‘office banter’ can be tricky to identify as potentially unwelcome or offensive as employees may feel pressure to join in as a way of fitting in and diverting attention from themselves.
Employers need to remember that this sort of conduct does not need to be on-going – a one-off incident could amount to sexual harassment.
Similarly, if this banter took place at an event or other place connected with the workplace, such as a business trip by a third party, the employer is also responsible and has a duty to protect their employees from that third party harassment.
Q. What’s the right way to address sexual harassment with my employees?
It is essential to ensure a robust anti-harassment and bullying policy is in place, which makes it clear that the company has a zero tolerance approach to acts of sexual harassment.
This policy should give examples of all types of behaviour which could be classed as inappropriate and unacceptable and what employees can do to raise their concerns. This policy then needs to be applied in the workplace as many organisations have anti-harassment policies but do not actually practice them. The policy itself will set out a system for the employer in how to address issues of sexual harassment when they arise.
Q. What happens if a member of staff threatens the business with legal action over a sexual harassment claim?
By making sure staff are aware of what is unacceptable behaviour, the employer will not only be taking all necessary steps to ensure its workforce are protected, they will also be protecting themselves in case the company has to defend any claim of sexual harassment in a tribunal.
The company will be liable for the actions of its employees unless it can show that it took all reasonable steps to prevent the employee from acting in such a way. Implementing a policy will help in this regard.
However, it will not be enough for the company to simply put a policy into place; it must publicise this policy and provide training to staff to ensure they are aware of behaviours that will and will not be tolerated. It is also very important that the policy is followed and that any reported incidents are taken seriously and addressed without delay.
A quick refresher for staff every so often of these procedures and policies can assist with ensuring a positive and safe work environment as well as providing the company with protection should a claim be brought.
Dealing with sexual harassment claims can be difficult, as employees may not want to voice their concerns through a formal complaint. However, by cultivating an open and honest workplace and a watertight policy, employers can help to ensure they are in a strong position if faced with a sexual harassment issue. If the employer is aware or suspects harassment is taking place then they have an obligation to act – they should not wait for a formal complaint from the victim before doing so!
