Dealing with sexual harassment complaints
In light of allegations made in the media last week about Russell Brand, the Legal & HR Team wanted to share insight on how employers should deal with sexual harassment complaints. While no legal charges have been brought against Brand, at this point, it is clear that media allegations of this nature can have a serious reputational impact on both the alleged perpetrator and on the organisations they work for.
Sexual harassment is a form of unlawful discrimination in terms of the Equality Act 2010. It is defined as unwanted conduct of a sexual nature which has the purpose or effect of either a) violating the complainant’s dignity; or b) creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant. It is therefore important that as an employer, you deal with complaints of this nature appropriately to avoid not only legal risk, but harm to the parties and reputational damage to the organisation.
To ensure your organisation is equipped to deal with sexual harassment complaints, the below tips are recommended by the Legal & HR Team:
1. Have an anti-harassment and bullying policy in place
Employers should have an effective anti-harassment and bullying policy in place. This will set the standard expected in the organisation and assist in creating a culture which does not condone behaviour of this nature. The policy should define sexual harassment; set out a process for lodging a complaint; detail how the complaint will be heard; and outline the possible resolutions available at the end of the process. It should be noted that this is a sensitive topic and therefore, employers are urged to ensure that their policy reassures that any complaint will be dealt with confidentially. Having a robust policy in place will also send the message that complaints will be taken seriously and dealt with appropriately. Failure to adopt such a policy may result in employees feeling like they do not have a channel where they can open up about their complaint.
It’s important to make sure that those within your organisation know the policy is in place, where they can access it and who they can direct any questions to regarding the policy.
2. Take all complaints seriously
Complaints may not always be made through a formal procedure. For example, another employee may have witnessed their colleague being harassed or reports of inappropriate “banter” may be made to a line manager by someone in their team. Even if a complaint is not made formally, it is important that allegations raised informally are fully investigated and the appropriate action is taken. It is not advisable to classify issues raised as a joke or sweep under the rug – the behaviour may still meet the legal definition of sexual harassment. Addressing all complaints made promotes a culture within the workplace which does not condone sexual harassment and again, reassures those in the organisation that they will be supported.
3. Provide training on sexual harassment
Employers should provide training on the topic to embed anti-sexual harassment into their culture and educate employees. This training may include examples of what sexual harassment looks like in practice; how managers should deal with complaints; how employees should deal with any sexual harassment they witness as a bystander; and how complaints can be raised under the anti-harassment and bullying policy. In many cases, employees have failed to understand that what they deem as “banter” can actually meet the legal definition of sexual harassment. Providing training should remove any ambiguity over what is and is not acceptable.
Employers should also ensure the training is kept up-to-date and monitor the effectiveness of the training and your policies. Anonymous surveys and exit interviews may be helpful tools when monitoring the effectiveness of the training and policies in the workplace.
4. Take appropriate disciplinary action
Where an employer finds that sexual harassment has taken place (e.g. through a grievance process or formal complaint), appropriate disciplinary action should be taken against the individual. In practice, this would involve the employer referring the matter over to their disciplinary procedure. This demonstrates that the employer takes sexual harassment seriously and will reassure those in the organisation that their complaints will be handled appropriately. It’s unlikely that individuals will feel empowered to make a complaint if there are no consequences for the perpetrator.
5. Offer Support
Employers should consider what support is open to their employees who have experienced sexual harassment. This may take the form of employee assistance programmes (EAPs), counselling or therapy sessions or private healthcare. Even if a complaint has been dealt with appropriately, sexual harassment can have a long-term psychological impact on the victim. Offering follow-up support ensures the employer is looking after the mental health of their employee and promotes good employment relations.
Employers should be aware that the law on how sexual harassment is tackled in the workplace is about to undergo a fundamental change. The Worker Protection (Amendment of Equality Act 2010) Bill has received royal assent and will soon become law (predicted 2024). The Bill has been designed to place greater responsibility on organisations to protect employees against harassment, including sexual harassment. It will include employers being under a positive duty to prevent sexual harassment from taking place. This means when a claim is raised, employers must demonstrate they have taken reasonable steps to prevent harassment in their organisation. In anticipation of the legislation coming into force, employers should assess the policies, procedures and training they have in place. A good place to start is reading the EHRC Technical Guidance on Preventing Harassment which is specifically designed to help employers avoid claims of sexual harassment and offers sound advice on how to deal with such matters if an issue arises.
As always, our Legal & HR Team are available to assist members with implementing a Anti-Harassment and Bullying policy, or any other matters related to sexual harassment in the workplace.