This is of particular relevance in the workplace, where sexual harassment is by no means a thing of the past. Surveys suggest that half of women have experienced harassment at work and the majority do not report it to their employer.
What is sexual harassment?
Sexual harassment is one of the strands of sex discrimination and is defined in the UK as unwanted behaviour of a sexual nature which has the purpose or effect of violating an employee’s dignity, making them feel intimidated, degraded or humiliated or creating a hostile, degrading, humiliating or offensive environment.
Examples range from sexual comments or jokes (too often unconvincingly passed off as ?banter?) to outright physical advances.
There is no need for an employee to have made it clear that the behaviour is unwanted and their own perception of how they have been treated is a key determining factor. In addition, employers can be found vicariously liable for the actions of their employees and there is no cap on financial compensation for a successful claim.
Dealing with allegations
Should a complaint of harassment be made against a senior employee, this should be treated as a grievance by the employee making the complaint and dealt with in accordance with the employer’s internal grievance procedure (or complaints procedure under its anti-harassment policy, if applicable).
From the senior employee’s perspective, the allegations should, if substantiated, be dealt with as a disciplinary matter under the employer’s disciplinary procedure.
It will be important to consider who should handle the disciplinary process to ensure they are independent and sufficiently senior. This can be particularly tricky where an alleged perpetrator is the most senior employee in the organisation, in which case it may be appropriate to appoint an independent external body to handle the disciplinary investigation and/or appoint a board member (where the employer is a company) as the decision maker.
Depending on the severity of the harassment, the sanctions could range from a first written warning to summary dismissal. If a sanction less than dismissal is issued, the employer will need to consider the future working relationship between the employees. This could include mediation and/or counselling, a change of work location or a change of reporting lines for one or both of the employees.
The employer will need to ensure the process is kept strictly confidential and, where appropriate, it should also consider whether the allegations are serious enough to involve the police.
Prevention is better than a cure
Tackling harassment through prevention is key. Having a clear anti-harassment policy will inform employees of what is and is not tolerated, and of the procedure to follow if harassment does occur. Such a policy should be brought to the attention of all employees on a regular basis, and senior employees in particular should be made aware that they are also subject to it.
Sexual harassment training should also be provided to all employees, with targeted training for those in positions of seniority. This should offer specific examples of what behaviours constitute harassment and abuse of power.
Encouraging people to speak up
As the Harvey Weinstein scandal has shown, there is a clear discrepancy between the prevalence of harassment and the willingness of victims to speak up.
Victimisation is a further strand of discrimination law which protects employees who have made a complaint of harassment at work from being treated less favourably. In addition, whistleblowing legislation protects those who in good faith report malpractice (which includes harassment) in the workplace.
Employers should ensure that it is made clear to employees that they will not suffer from retaliation or victimisation as a result of having raised a complaint. This should be documented in the employer’s whistleblowing policy and, if applicable, anti-harassment policy, and form part of the employer’s anti-harassment training.
Written by Katherine Newman and Emma Vennesson, labour and employment associates at leading law firm Faegre Baker Daniels