All employers have a duty to protect their employees from sexual harassment and prevent such incidents from occurring in the first place. Failure to have adequate policies and procedures in place or neglecting to investigate claims adequately can result in business owners being held vicariously liable if a claim for sexual harassment is brought before the Employment Tribunal.
All sexual harassment complaints must be taken seriously and investigated sensitively and meticulously. To protect their best interests, it is highly advisable to seek legal advice regarding investigating the allegations and drawing conclusions.
In this article, we provide a basic guide to how an employer should oversee an allegation of sexual harassment from an employee.
What is workplace sexual harassment?
Sexually harassing anyone in the workplace is unlawful under the Equality Act 2010 which defines sexual harassment as:
“a person (A) will harass another (B) if A engages in unwanted conduct of a sexual nature and that conduct has the purpose or effect of violating B's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for B”.
As an employer, it is vital to understand that it is the effect that the conduct has on the complainant, not the intention of the alleged harasser, that is considered by the Employment Tribunal. As such, so-called ‘locker room banter’ can constitute harassment if it has the effect of creating an intimidating, hostile, degrading, humiliating or offensive environment for the complainant, and it is reasonable that the relevant conduct would have that effect. For example, sharing lewd or sexual jokes about female employees could have the effect of creating a hostile environment for women in the office, particularly if women are outnumbered or generally employed in more junior roles than their male colleagues.
How and when does sexual harassment occur?
Not only does protection from sexual harassment under the Equality Act cover working hours, but it also applies to work-related social events such as Christmas parties, organised leaving drinks and team-building away days. In reality, a lot of harassment occurs during such events when drinks are flowing, and employees feel that they are ‘off duty’. In such circumstances, an employee can claim compensation from their employer as the harassment will have occurred in the course of their employment.
How should an employer manage a sexual harassment complaint?
All businesses should have an anti-bullying and harassment policy in place either as part of a staff handbook or a separate policy. It should set out how employees can report allegations of harassment and contain a disciplinary policy detailing the disciplinary action that can be taken against someone who sexually harasses other staff.
Below are five tips for managing a sexual harassment allegation by one employee against another:
- Ensure you do not let your personal feelings and views colour your judgment. Although you may not find the behaviour complained of intimidating, hostile, degrading, humiliating or offensive other people may.
- Make sure you follow the Acas Code of Practice on disciplinary and grievance procedures and/or your company’s existing policies and procedures regarding sexual harassment claims. If you do not, the person accused of harassment could bring a claim in the Employment Tribunal for unfair or constructive dismissal.
- If an employee claims that they have been the victim of a sexual assault or rape make sure you get advice from an Employment Law Solicitor. You should talk to the complainant about whether they wish to report the incident to the police but never put pressure on them to do so or not to do so.
- Whilst the investigation is progressing, make sure that you update the complainant and alleged harasser immediately on any progress and inform them promptly as to the outcome.
- Do not use a Non-Disclosure or Confidentiality Clause to try and stop an employee from reporting allegations of sexual harassment or assault.
If the complainant is unhappy with the adequacy of the investigation they can raise a formal grievance about the investigation itself, either on its own or as part of a wider grievance relating to the harassment. This could result in you having to re-investigate the allegations and examine how your business deals with complaints. Therefore, it is imperative to follow the correct procedures from the moment an allegation is brought to your attention.
Wrapping up
Investigating sexual harassment claims can be extremely stressful and fraught with risks. Our Employment Law Solicitors have expertise in harassment and discrimination law that is second to none and can advise and support you through the entire investigatory and disciplinary process.
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