Under the Equality Act 2010, sexual harassment is when someone engages in unwanted conduct of a sexual nature, which either violates the dignity of the recipient, or creates an intimidating, hostile, degrading, humiliating, or offensive environment for them.
Essentially, if someone’s behaviour is inappropriately sexual, unwanted, and makes you feel uncomfortable, it’s sexual harassment. It can come in many forms from comments and jokes, to emails or messages, or more overt physical action. Every employee has a right to be free from harassment when they?re at work and it’s your duty, as an employer, to enforce that.
Employees may not be sure whether something is sexual harassment
All too often, people dismiss what’s happening to them as “not being serious enough”. They might feel embarrassed, or worried about the implications of “making a big deal”, particularly if the behaviour involves a colleague.
If your employee isn’t sure whether something is sexual harassment, encourage them to talk it through. Suggest they discuss concerns with a friend or family member, or speak confidentially to your HR department, or their trade union. Make them aware that several services like Acas, the Citizens” Advice Bureau, and the Equality Advisory Support Service ?offer free, impartial advice.
As an employer, don’t forget that sexual harassment is gender blind. Women are statistically more likely to be subjected to it, but individuals of all genders can and do experience it.
They may not know who to report sexual harassment to
Tell your employee that, firstly, and if they feel able to, they need to make it clear to the person harassing them that their behaviour is unwanted, and makes them feel uncomfortable. If it continues, or they don’t feel able to speak directly to their harasser, they should raise their concern in writing with their line manager, and HR, and know you’ll take the claim of harassment seriously.
They may think that no one will take their claim of harassment seriously
Let your employees know that, as their employer, you have to take allegations of sexual harassment seriously. Not only because of the potential legal, financial, and social consequences, but also because you have a duty of care to them, and it’s the right thing to do.
If your employee has spoken to your HR department, but believes that nothing’s changed or feels you’re not taking their claim of harassment seriously chase matters up on their behalf. Ultimately, remind them that they could raise a formal grievance. If no action is taken or they?re penalised for raising the matter they could submit a claim to an employment tribunal.
If you’re without an HR function, they may not know who to approach
If your employee has tried informally approaching their harasser and asking them to stop, or they?re not confident in doing so, they need to know that they should follow your organisation’s grievance procedure. Whatever your size as an employer, you have to have one.
Advise your employee that it’s helpful for them to provide as much detail as possible of all incidents including dates, times, and any witnesses. They should keep copies of relevant documents, including emails, texts, and any other communications. These will be considered at any grievance hearing.
They may not know what to do if a colleague is experiencing it
Encourage employees to take their colleague to one side, and have a chat with them to see how they feel. If the colleague feels they?re being sexually harassed, your employee should ask them if they?d like help approaching the harasser to tell them to stop, or support to speak with their line manager or HR.
As an employer, you might have questions yourself, such as the following.
What should I include in policies to show I’m taking harassment seriously?
Ideally, you should have an Anti-Harassment and Anti-Bullying policy to cover all aspects of bullying and harassment, including sexual harassment. This should include a statement of commitment from senior management, a clear statement that bullying and harassment is unlawful, will not be tolerated, and may be treated as disciplinary offences. Examples of unacceptable behaviour should also be included, alongside the steps your organisation takes to prevent bullying and harassment.
How do I deal with a complaint?
Take every complaint of harassment seriously. Always investigate thoroughly, objectively, and impartially. Remember that you need to think about the harassment from the recipient’s point of view. You can only defend a claim for sexual harassment at employment tribunal if you can show that you took reasonable steps to prevent the behaviour.
What if it’s against a senior member of staff
Employees are often reluctant to bring a complaint of sexual harassment, and this is magnified when a senior member of staff is involved. But, you have to make sure that the grievance is properly investigated and, if upheld, dealt with. If the alleged harasser is particularly senior, you might want to get external help to make sure that the investigation is impartial, and encourage people to speak freely.
If you decide to offer a settlement agreement, do so with caution. As with Harvey Weinstein, serial offenders are often protected until ?outed . This can have an extremely negative impact on your reputation, so think carefully.
What if I suspect sexual harassment, even if it’s not reported
If you suspect sexual harassment, you should have an informal discussion with both individuals involved. If the recipient confirms that they believe they?ve been sexually harassed, encourage them to make use of your informal, or formal, processes. Even if they don’t want to make a formal complaint, you might still have to take action if the incident is extremely serious, or other employees have been affected.
Mary Goldsbrough is an employment law associate at Capital Law
