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Philip Henson

DKLM

Partner

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Legal Insight: Dealing with workplace sexual harassment

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Tippi Hedren, the heroine of Alfred Hitchcock’s masterpiece, ‘The Birds’, recently told how her movie career was “sabotaged” after she rejected Hitchcock’s advances.

Having done so, Hedren was held to her contract – the modern day equivalent of being sent to Coventry.
 
Fast forward to 2012, and if the alleged events happened now, she may have been able to seek redress in the employment tribunal.
 
Sexual harassment is often portrayed in sections of the UK media as an issue that only crops up at Christmas parties, is “just a harmless bit of fun”, or simply “workplace banter”. 
 
 
But such claims can create deep (and long-lasting) divisions in the workplace and, as such, need to be taken very seriously.
 
Each case brings with it its own unique set of facts and challenges, however. It may involve members of staff from across the business who work closely together, including very senior managers. Third parties such as customers and clients may also be pulled into the situation. 
 
Complaints in this area usually peak during Christmas party time (staff and client), at conferences or on business trips (outside of the workplace) and where there is an increase in activities in which colleagues socialise together such as major sporting events.
 
Here is an overview of some of the types of behaviour that could be classified as sexual harassment as well as suggestions about how you may be able to prevent it taking place in your organisation:
 
What is sexual harassment?
 
The Equality Act 2010 s.26, defines sexual harassment as:
 
‘Unwanted conduct related to B’s sex [which has the effect of] violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B’.
 
Examples of sexual harassment:
 
Direct:
 
  • Insulting someone on the grounds of sex
  • Unwelcome touching, standing too close, displaying offensive materials, asking for sexual favours
  • Leering at an employee’s body
  • Making personal and intrusive comments about physique and clothing
  • Pestering someone for a relationship, or for their personal contact details
  • Repeatedly suggesting socialising after work after it has been made clear that these suggestions are unwelcome
  • Attempting to share personal information about someone’s sex life.
 
Indirect:
 
  • Spreading malicious rumours about B on the grounds of sex. Such rumours often come about as a revenge tactic after B has rejected an employee’s advances
  • Displaying material of a sexual nature such as a topless calendar, where this makes the workplace an offensive place to be for any employee (female or male)
  • Circulating emails that include innuendo, photographs or ‘dirty’ jokes. We have all read stories about how an offensive group email has “gone viral”. Therefore, it is worth reviewing your email, internet and computer use policies (and definitions of misconduct/gross misconduct in your disciplinary policy) to ensure that such situations are included.
  • Abusing managerial authority by making work opportunities conditional upon a close relationship
  • Potentially offensive ‘office banter’.
 
How to head such situations off at the pass:
 
1. Hold regular equal opportunities training sessions: 
 
We would recommend holding regular equal opportunities update meetings with senior managers. Case studies are useful to help educate (and occasionally shock) people by showing the negative effects that incidents can have on organisations.
 
Such negative effects include having to pay compensation to victims, and tribunal claims, under which the individual accused of harassment may be personally held liable. They also include the potential impact on the business’ reputation, which can result in customers leaving (especially in the case of government contracts) and negative press stories.
 
2. Develop a comprehensive policy that acknowledges senior management’s commitment to tackling and eradicating sexual harassment:
 
  • Provide comprehensive examples of what constitutes unacceptable behaviour and the steps that the organisation will take to prevent harassment
  • Outline the responsibilities of supervisors and managers as well as the strict confidentiality that will be accorded any complainant
  • Explain any investigation and grievance procedures (formal and informal) that are in place, plus timescales for action
  • Set out disciplinary procedures, timescales for action, and whatever counselling and support services are available
  • Clarify what training is provided for managers. Ensure that when they attend training courses, they sign a form to confirm that they have participated and completed them – consider introducing e learning follow-up sessions
  • Ensure everyone understands that the policy applies to staff whether they are on or off the premises (which includes office parties) as well as to any employees or third parties who visit the premises
  • Make it clear to whom an alleged offence should be reported as the first point of contact, but consider providing a second point of contact if the first is personally, or potentially, involved. State how the policy is to be implemented, reviewed and monitored
  • Remember that incidents involving touching and other physical threats are also potentially criminal offences and should be reported to the police
  • Bear in mind that initial claims may lead to further claims if an employee is victimised or treated less favorably because they have rejected, or submitted to, either form of harassment – or to a separate claim under the Protection from Harassment Act 1997.

Philip Henson and Julian Cox are partners and joint heads of employment law at law firm, DKLM LLP.

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Philip Henson

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Read more from Philip Henson
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