Recent events have confirmed that no workplace is immune from the risk of sexual harassment. It is happening, and every employer has an obligation to prevent it.
What is sexual harassment?
At law sexual harassment is characterised as any unwanted, unwelcome, or uninvited behaviour of a sexual nature which would make a reasonable person feel humiliated, intimidated, or offended. It can include unwelcome advances or touching, sexist comments or jokes, intrusive questions or requests or the exchange of sexually explicit texts, emails or images.
What can employers do to keep their workplace safe?
A pinch of prevention is worth a pound of cure.
Employers have an obligation to provide a safe workplace for their employees. This includes in the context of sexual harassment an obligation to take all reasonable steps to implement measures to prevent and act on such conduct. If an employer doesn’t do this they may be vicariously liable for an employee’s actions.
Have robust policies and train your employees in them
Every employer should have a policy which makes it clear that sexual harassment is unlawful, intolerable and sets out what should happen if it occurs.
Good policies clearly define sexual harassment and provide examples of the different forms it takes. It is imperative that all employees, regardless of seniority or position understand that they must adhere to the policy.
It can be difficult for individuals to report incidents for fear of the consequences. Organisations should designate reliable and trustworthy points of contact for any complaints and develop confidential complaints mechanisms to ensure all complainants feel supported.
Employers should not rely on a written policy or ‘good workplace culture’ to assume that sexual harassment will not occur. The policy should be regularly reviewed and updated, distributed to new and existing staff and discussed with all employees in detail to ensure that its contents are understood. Organisations need to regularly train all of their employees on the ways to recognise and respond to inappropriate behavior. Such training should be compulsory.
Ensure that allegations of inappropriate conduct are responded to swiftly and treated seriously
Allegations of sexual harassment should be treated seriously and responded to swiftly. The relevant policy should set out the process.
Procedural fairness is the hallmark of a proper investigation. It is a facet of natural justice, which requires (amongst other things) that an employee with an allegation(s) levelled against him/her is provided with sufficient detail of the allegations to enable him/her to properly respond. In workplace investigations, procedural fairness does not require the level of evidentiary scrutiny seen in courtrooms.
The investigation should be carried out by someone with sufficient qualifications or experience. This may be someone from Human Resources or in some circumstances someone independent and external. An external investigator may be necessary where internal personnel lack the requisite experience, where the allegations involve a particularly senior employee or where risks of bias exist (for example where the investigator knows the complainant or the alleged perpetrator personally).
The investigator needs to gather all of the relevant evidence and fairly and objectively consider and test that evidence. A fair and thorough process is critical to ensure the integrity of the investigation and protect all parties involved.
An investigation that has been prejudiced in any way can lead to a complaint to an anti-discrimination tribunal or expensive litigation. It could also lead to prosecutions and serious reputational damage to the employer.
All parties should be supported and treated with respect during investigations. The employer owes duties to the complainant, the alleged perpetrator and the witnesses.
Where sexual harassment has occurred, employers should review their procedures, policies and culture to see what can be done to prevent such conduct in the future.