Sexual Harassment in the Workplace

The growing publicity surrounding sexual harassment in the workplace

Hardly a day goes by at the moment where we don’t read or hear something in the news about some form of sex discrimination in the workplace.  Although this is an issue which has always existed it is now more widely publicised with allegations against various high profile public figures now coming to light.

Sexual discrimination exists in the workplace when an employee is treated badly and unfairly purely on the basis of their sex. This is unlawful in terms of the Equality Act 2010.  Sexual discrimination can come in all different forms.  It could come in the form of unequal pay.  This has been in the news recently when the BBC published the wages of their employees, with female employees’ male counterparts being paid significantly more, leading to the resignation of Carrie Grace as BBC’s China Editor and several male presenters accepting wage cuts.

Sexual discrimination can also come in the form of bullying in the workplace, victimisation or harassment.  This has appeared in the news frequently following the likes of sexual harassment allegations amongst MPs arising in Westminster last year and the Harvey Weinstein scandal emerging with a large number of women (including a string of A-list actresses) coming forward to say they were sexually harassed or assaulted by the film producer whilst working with him.

The allegations arising in Westminster pointed out numerous inadequacies within Parliament including the fact there was no independent HR department, no proper grievance procedure and there were no real consequences for those who had stepped out of line. This has resulted in the cross party report announced in Parliament at the beginning of this month, stating urgent reform is needed to tackle a culture of harassment and bullying at Westminster.  Among the recommendations are a new complaints procedure and an investigation mechanism independent of parties, with tougher sanctions proposed for those found to be in breach of the newly proposed code of conduct.

Whilst most of our workplaces are not subject to the intense public and media scrutiny that the likes of Westminster, the BBC or Hollywood will be under, that is not to say that sexual harassment does not exist elsewhere and the media frenzy surrounding these recent reports has encouraged others to speak up and share their own stories of sexual harassment in (or indeed out of) the workplace with the #metoo campaign.

Despite sexual harassment taking place in some workplaces, it may go unnoticed if employees are afraid to report it and there are insufficient protection measures in place.

With these stories hitting the headlines, employers should really be looking at their own internal policies and asking themselves the question of whether they are doing enough to protect against sexual harassment in the workplace.

All employers have potential liability for sexual harassment in the workplace

An employer’s liability for sexual harassment in the workplace may extend further than they may first think. Perhaps some employers may be aware of sexual harassment in the workplace but choose to sweep it under the carpet and ignore it as they do not wish to ‘get involved’, but taking this kind of attitude could then end up in with the employer being taken to Tribunal or Civil Court.

There are laws in place to protect victims of sexual harassment such as the Protection from Harassment Act 1997 and the Equality Act 2010. The Protection from Harassment Act 1997 can extend to harassment (including sexual harassment) in the workplace – and the employers can be found to be vicariously liable for the actions of their employee under this law as established in the case of Majrowski v Guy’s and St Thomas’ NHS Trust in 2006.  In order for an employee to be successful in a harassment case under this Act there would have to be a course of conduct which amounts to the harassment of another.  Harassment is conduct that causes alarm or distress, and a course of conduct must involve such conduct on at least two occasions.  It has also been established from the Court of Appeal judgement in Sunderland City Council v Conn in 2008, that “the touchstone for recognising what is not harassment … will be whether the conduct is of such gravity as to justify the sanctions of the criminal law”.

In relation to the Equality Act 2010 sexual harassment in the workplace is unlawful. Sexual harassment in the workplace is unwanted conduct that has the purpose of violating a person’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that person.  The employer has a duty of care to protect their employees and can be legally liable for sexual harassment in the workplace if they have not taken reasonable steps to prevent it.

Notwithstanding legislative protection from harassment, every employer has a common law duty of care towards their employees and an obligation towards the health and safety of their employees to ensure that there is a safe system of work. This could extend to include protection from potential sexual harassment perpetrators who are known to the employer.

In addition, if an employer knows about the sexual harassment and does nothing about it this would likely destroy their contractual obligation of mutual trust and confidence with their employee which is a breach of contract and could result in a civil claim against them in the Sheriff Court or a claim against them in an Employment Tribunal for constructive dismissal if the employee were to resign.

What measures should an employer put in place to protect against sexual harassment?

Now that we can see an employer cannot simply sit back and ignore sexual harassment in the workplace, what measures can they put in place to promote a safer, positive, working environment?

An employer can provide training on equality and diversity. They may choose an external training provider for this – someone with an in-depth knowledge on the issues surrounding equality in the workplace.  This will provide all employees with more awareness and knowledge on the subject, including specific awareness of employees’ rights under the Equality Act 2010.  In addition, training should be provided to those dealing with sexual harassment complaints, to ensure they are equipped to deal with these matters in a sensitive and professional manner.

Employers should ensure they have equality, bullying and anti-harassment policies in place which are regularly reviewed and updated. These policies should form part of the staff handbook and be non-contractual, meaning they can be reviewed and updated regularly without employee consent.  Setting out clear policies in the workplace helps to ensure that employees are all aware of what is expected of them, what will happen if they do not meet the standard required of them, and what they should do if they are in a situation where they believe they are experiencing harassment in the workplace.

Employers should all have a clear grievance policy set out which is made available to all employees. This policy should be clear and should be in line with the code of practice on grievances, published by ACAS, which is available on their website.  The grievance policy should be set out clearly and be made available to all employees so that they are aware of how they can make a grievance and the process that follows after they have made the grievance.  A grievance is a formal way of an employee raising a concern about a matter related to their employment with their employers, which the employers are then obliged to investigate and reach a decision on.   The employee has the option to raise a grievance with the company if they feel they are being subjected to harassment by another employee.  Any grievance policy should contain, as a minimum:

• The ability for any employee to raise a formal grievance. The policy may set out that the employee should raise the grievance informally at first with a manager in an effort to resolve the matter and thereafter, if there is no resolution, raise a grievance.
• How the employee can raise the grievance and who they can send their grievance to. If the grievance was against their line manager and they would ordinarily be sending the grievance to that line manager, there should be a substitute manager to report to in that scenario.
• How the investigation process should run. The policy should set out what a reasonable investigation may entail which could include speaking to other employees and taking witness statements, revising internal documents, and creating an investigation report which can then be passed to someone else to make the decision. The investigation should be unbiased and reasonable.
• The right to a grievance meeting. The employee should be allowed the right to attend a grievance hearing to explain fully to the chairperson their grievance. They have the legal right to be accompanied to this meeting by a trade union representative or a colleague. Family members can sometimes be allowed, at the discretion of the employer. If the grievance was involving sexual harassment and of a particular sensitive nature, the employer may want to use their discretion to allow a family member to be present if this would aid the employee.
• The right to have the outcome of the grievance communicated in writing. If the employee raised a grievance against another employee for sexual harassment, depending on the circumstances, this could result in disciplinary proceedings commencing against the harassing employee and, if the behaviour was found to be sufficiently serious to constitute gross misconduct, the harassing employee may go on to be summarily dismissed, or obtain a warning if it did not constitute gross misconduct. The employers may decide to adjourn the grievance procedure to allow the disciplinary procedure to take place first.
• The right to appeal the outcome of the grievance if dissatisfied. The right of appeal should be mentioned within the content of the outcome letter and should make clear who to appeal to, how to appeal, and the time limit within which the appeal can be made. If the independence of the original decision maker was challenged within the appeal the employer might decide to carry out a full re-hearing of the grievance with a different decision maker, to ensure fairness.
• Support for the victim of the sexual harassment in serious cases if the grievance is upheld. Offering the employee counselling with a qualified, independent counsellor may help the employee to process their thoughts and feelings at the end of the grievance process. It is also important to note if the matter is serious, the employee should be encouraged to contact the police as this may also be a criminal matter.

How can we help?

We hope you enjoyed reading this article.

We offer employment advice to employers and employees in the Moray area and would be happy to help if you have a query about the above article, or any other employment related matter. We can also draft policies for employers, as discussed in this article.

Feel free to give us a call on 01343 544077 for an initial, no obligation discussion, or send us a Free Online Enquiry.

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Note: This article first appeared on the Moray Employment Law website in February 2018.