Sexual Harassment: Flirting with Disaster

Following the series of allegations made against public figures over recent weeks, including actor Kevin Spacey and producer Harvey Weinstein, the topic of sexual harassment is a major national talking point. Whilst the media have focussed on allegations made against public figures, these issues can and do affect the workplace. It is also possible that staff, empowered by recent events and the #metoo social media campaign will begin to come forward with their own allegations and concerns.

As a modern employer you can, and should, take steps to ensure your workplace is a safe and welcoming environment for all of your staff and that any allegation of harassment is handled appropriately. Whether or not a complaint is well-founded, how the matter is handled (both in relation to the accuser and the accused) is key in workplace relationships and the protection of your business and its reputation.

What is sexual harassment?

Having a clear idea of what is (and what is not) sexual harassment is key to protecting your employees and your business. Unfortunately it is impossible to say in the abstract what will amount to sexual harassment and it would be equally unhelpful to trot out a legal definition, as there are some acts which, whilst legal, would be completely unacceptable in the workplace. In broad terms, sexual harassment involves unwanted conduct of a sexual nature.

This debate usually circles back to the ‘hand-on-the-knee’ which landed the former Defence Secretary Sir Michael Fallon in hot water last week. As a rule of thumb, where conduct is sexual in the workplace this should set off alarm bells and a starting point should be that that conduct is not appropriate. Where the complainant alleges that the ‘hand-on-the-knee’, whilst maybe not sexual, was not wanted, a modern employer may wish to treat such allegation as one of sexual harassment.

It is also worth remembering that sexual harassment does not necessarily require any physical ‘touching’. As we have seen over the past couple of weeks, lewd comments, emails, texts or seemingly innocuous advances can result in allegations of sexual harassment.

And yes, for these purposes the workplace includes after work drinks and the Christmas Party!

How do I deal with allegations of sexual harassment?

Where an allegation has been made against a member of staff (or ex-member of staff), a modern employer should deal with it with sensitivity and discretion. You should consider the personal turmoil which may have led up to the complaint and be prepared to hear the complainant out, regardless of your views on the severity of the alleged conduct or the seniority of the alleged offender.

It will usually be appropriate to investigate any alleged incidents of sexual harassment or abuse. The investigation should, where possible, be dealt with by someone independent to the case, the accuser and the alleged perpetrator in a way which minimises distress to all parties involved. Of course the investigation should be confidential, but employers should also consider more practical matters:

• Should the accused be suspended?
• Should the accuser and accused be prevented from working together in the short term?
• What is the most appropriate venue for the investigation? The scene of the alleged incident will rarely be appropriate!
• Do you need to speak to anyone else about the matter?
• How will you phrase your questions to both parties?

Depending on the investigation findings it may then be appropriate to take disciplinary action. Conversely if there is no perceived case to answer after investigation, it is crucial that this is communicated to the accused and the accuser sensitively, without blame or judgement on either party. You will also need to think about how to manage the relationship between the individuals moving forward, perhaps with mediation.

What about historic allegations?

In some cases, the alleged conduct will have happened many years before any allegation is made. A modern employer should not dismiss an allegation as false or not worthy of investigation purely because it relates to historic conduct; certainly preparatory investigatory steps should be taken at least.

How can I be pro-active?

Let’s face it – there is little you can do about historical allegations of sexual conduct. There is also little you can do if a sexually charged employee is hell-bent on cornering their crush at the end of after work drinks at 3am in the dark corner of the bar. What you can do is take steps now to ensure that employees know:

• Exactly what behaviour is, and is not, acceptable;
• What action to take if they feel they have been sexually harassed; and
• That any victims will be supported.

With that in mind:

• Produce, publish and communicate your policy on sexual harassment in the workplace, the standards of conduct expected, what you consider to be the workplace and what action will be taken;
• Re-train your staff (including directors) on sexual harassment and your policy on it; and
• Review your grievance policy to check that it is appropriate to deal with sexual harassment matters.

Not only should all of that set out your stall on the matter and provide a mechanism for dealing with it, it will also offer you protections and legal defences as an employer if your business ever comes in the firing line.

If you would like more information on the content of this article, details of how to deal with allegations and how you can take a proactive approach to preventing sexual harassment, please call our Employment Team on 01603 281153.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any particular circumstance.