You too must help tackle #MeToo

By Adam Bernstein, Monday 22 January 2018

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In the weeks since the initial allegations of sexual harassment were levelled against Harvey Weinstein, Kevin Spacey and even honourable Members of Parliament, a torrent of other allegations have followed.

harassment

Many will only have come to light through collective confidence of the victims. All could be career ending for the perpetrator whether proven or not. But just as importantly for employers, they’re on the hook should an employee decide to pursue a claim.

And it appears that the world of print is not exempt. 

Grafenia chief executive Peter Gunning noted on a LinkedIn post his experience at Ipex last year. He was debriefing his team after the first day where an associate director, a woman with seven years service, reported she had been called “a dolly bird” by a visitor who then proceeded to ask whether she knew what she was talking about. Gunning has since found the experience not unique – a (female) industry friend commented, on hearing the story, that “competitors would say ‘the only reason you do well is the size of your t**s’.”

Peter Cheese, chief executive of the HR professionals body CIPD, says of harassment that it typically happens where men in positions of power take advantage of women who are their junior or who see themselves as beholden to the men for their position. 

He says: “Where the job or role is less secure or hard to obtain, this power differential and risk increases. But that sort of culture does not appear overnight, and is often fed by historic condoning of casual sexism that then sets a tone that harassment can feed off.”

Jane Mann, head of employment at law firm Fox Williams considers the public outing of allegations an important development. “In the past many women felt unable to complain because of the likely repercussions for their careers; advisers would warn women that complaining about discrimination or harassment in the workplace could be career limiting and there was a real stigma surrounding complainants.” 

Interestingly, she says that women are now being praised for coming forward and reporting unlawful conduct in the workplace – “they are also making use of victimisation laws where employers take retribution against women who have made complaints of discrimination”.

Key issues making the headlines

Lee Ashwood, a senior associate in the Human Resources Practice Group at law firm Eversheds Sutherland, notes that the key point coming out of all the recent sexual harassment allegations, denials and admissions “is just how unaware the men appear to be of what is likely to be found by an Employment Tribunal to be sexual harassment in the workplace.” 

He says that their motivation, intention or perception of their actions is completely immaterial. This is because “an Employment Tribunal will find that a male employee has subjected a female colleague to ‘sexual harassment’ if he did or said something related which was not wanted by that colleague and which it was reasonable for the female colleague to feel that their dignity had been violated or an intimidating, hostile, degrading, humiliating or offensive environment was created as a result.”

It is remarkably easy for men who are not moving with the times to fall foul of the rules as it captures a wide range of behaviours from wolf-whistling, wall calendars featuring photographs of scantily-clad women and addressing female colleagues by what used to be thought of as terms of endearment, such as ‘darling’ or ‘babe’.

Mann agrees: “Employees often mistakenly believe that if they don’t mean to cause offence then ‘banter’ is acceptable... Employees harassed in this way can bring claims against both their colleague and their employer for injury to feelings”.

But are sexual misconduct allegations on the rise? Ashwood thinks not and that given time the recent stories in the media may well make men think twice before speaking or acting; he reckons we will actually see a fall in instances of sexual harassment. “The issue for employers,” he adds, “is that we are undoubtedly seeing a rise in the number of allegations of sexual harassment in the workplace as women begin to feel empowered to talk about it, challenge it and gain confidence that their allegations will be taken seriously.”

It is for this reason that Cheese says that now, more than ever, organisations need to do everything they can to instil the right culture through “managers and HR professionals understanding their responsibilities and taking them seriously” and “ensuring that all employees are accountable for raising any issues they observe.”

The problem is that victims will be less inclined to come forward if, as Cheese notes, “they believe that the leadership is more concerned about protecting reputations than taking a stand against harassment, which makes the role leaders play in building the right culture crucial.” 

Vicarious liability - the hidden man-trap for employers 

Case law has shown that employers should be aware of a legal concept called ‘vicarious liability’ where they become liable for negligent acts and omissions caused by staff in their employment. Ashwood says its easy for employers to be found liable for one of their employees sexually harassing another in the office, at a works do or even after the party has ended. “The person making the allegations and bringing the claim does not even need to bring their tribunal claim against the accused; they can simply bring it against their employer,” he says. 

This is why Mann recommends employers take steps to educate employees about equality and diversity, and demonstrate a zero-tolerance approach to discrimination in the workplace. She advocates training to cover all forms of discrimination, rather than focusing on one particular area such as sexual harassment. “If an employer can show that it has taken all reasonable steps to stop discrimination in the workplace, an employee may be solely liable for their misconduct,” she adds. 

Indeed, there have been cases where an employer has escaped liability for the wrongdoing of its employees because the tribunal has accepted that it has done everything it reasonably could to prevent discrimination in the workplace.

And claims can prove very expensive as the awards a tribunal can make are unlimited; while the award for injury to feelings might be small, if the individual is highly paid and cannot return to work, the award could be substantial.

But as to how employers should deal with the issue there is clearly no magic solution. 

As Ashwood notes, some businesses will look to keep any allegation hushed up and to buy the accuser’s silence with a settlement agreement that offers compensation in return for dropping the allegations and keeping the whole matter confidential. He says that “ordinarily, the primary motivation of the business to do such a deal is to avoid the negative publicity and everything that is associated with that”. 

However, he also points out that such cases can be used as a lesson to improve the culture within a business: “Some businesses will be very open about the outcome of any investigation.” These employers want to promote themselves as welcoming of any allegations as the short-term pain of cases is outweighed by the long-term gain in reputation for being open, honest and willing to challenge sexual harassment in the workplace. 

Mann too is aware of attempts to gag employees without properly investigating complaints or taking appropriate action: “Many believe this has helped to perpetuate a culture where sexist males progress up the career ladder, while the harassed females’ careers stagnate or decline.” She thinks sensible employers will now make sure that allegations are investigated and that suitable disciplinary action is taken.

But what of historical allegations? If they’re serious enough no doubt that will mean police involvement. But in terms of the workplace, an employer’s investigation may well be limited because, as Ashwood explains, “the employer may not be able to contact the accused or, even if they can, they cannot compel them to talk.” The only option in this circumstance is to focus on making the person who has raised the allegations feel supported and cared for. 

The rights of the accused

Employers should be careful not to get swept up on the ‘Weinstein wave’ and so assume that all those who are accused are guilty – remember the maxim of ‘innocent until proven guilty’ is a fundamental principle our legal system. But as Ashwood takes pains to point out, the accused is entitled to expect the allegations and any investigation to be kept confidential at least until the investigation and any disciplinary process has been concluded. He warns: “Should their identity be revealed, employers run the risk that the accused, having discovered their identity is widely-known amongst their colleagues would have a strong claim to say that their trust and confidence in the employer is irreparably broken and so their subsequent resignation amounted to a constructive dismissal entitling them to compensation.” And that, as we’ve seen earlier, can prove very expensive for the employer. 

Going forward and removing the issue from the workplace

Employment law solicitors are bound to say that policies are vital as it gives a firm basis for engendering a sound working ethos; they give employers and their employees clear guidelines on how to behave and what to do if some does not behave as they should. But Ashwood thinks that more important than policies “is getting managers to understand what is and what is not acceptable behaviour in the workplace and giving them the tools and confidence to challenge unacceptable behaviour when they see it.” A policy, he adds, is only one of those tools, others being training and, of course, senior managers leading by example. 

Cheese understandably believes that HR professionals have a crucial role to play in offering a ‘safe place’ where employees can be heard in confidence and know that their concerns will be addressed: “There must be a clear process to ensure that any complaints are treated with the seriousness they deserve in proportion to the claim being made in order to be fair to both the person making the claim and the individual that stands accused.”

To conclude

Given that many surveys indicate that 50% or more of women* (and around 10% of men) have experienced some form of harassment in the workplace, we now know that sexual harassment is not confined simply to the corridors of Westminster or the casting couches of Hollywood. The problem isn’t going away and the trade needs to be alive to the risks it faces. And considering that that largest ever penalty against an employer for unlawful discrimination was in the region of £4m, the financial implications are potentially huge.


Tips to stamp it out

Organisations should treat any form of harassment or bullying seriously, not just because of the legal implications and because it can lead to under-performance, but also because people have the right to be treated with dignity and respect at work. Employers should foster a fair and inclusive working environment that enables everyone to feel they can contribute at work.

The conflict that harassment creates should not be underestimated. Employees can be subject to high levels of stress that can reduce engagement and may lead to higher labour turnover, increased sickness absence and less productive and effective teams. Furthermore, an organisation’s public image can be damaged when harassment incidents occur, affecting relationships between an employer and their current and future employees, as well as their customers.

An employer’s first responsibility is to clearly articulate the organisation’s policy on bullying and harassment at work, dealing with any issues promptly, seriously and discreetly. But HR also has a role to play beyond the formal policies and practices. HR should lead development of a broader positive culture in which harassment is known to be unacceptable and where individuals are confident enough to bring complaints without fear of ridicule or reprisal. 

Dealing with complaints All complaints should be dealt with promptly. Some may be dealt with internally and informally. In minor cases it may be sufficient for the recipient of harassment to raise the problem with the alleged perpetrator, pointing out the unacceptable behaviour. But if an employee finds this difficult or embarrassing, procedures should enable support from a colleague, an appropriate manager or someone from HR. A choice of contact should be available in case the person’s manager is the alleged harasser. Acas, the conciliation service, also has a helpline that employees can call for advice. 

Mediation A CIPD Conflict management survey** shows that employers believe that mediation helps improve relationships between employees, reduces or eliminates the stress involved in more formal processes and avoids the costs involved in defending employment tribunal claims. Mediation services are available from non-profit organisation the Centre for Effective Dispute Resolution (www.cedr.com). 

Formal procedures If informal approaches don’t work, formal procedures should be triggered. They’re needed if the harassment is serious or persists, or if the individual prefers this approach. Organisations should have a clear formal policy to deal with all types of grievances and disciplinary issues, including bullying and harassment. Acas has a number of guides on grievances and disciplinary issues, which can be found on their website (www.acas.org.uk) under the Advice & Guidance tab. 

Investigation Formal allegations of harassment, bullying or any intimidating behaviour should be treated as a disciplinary offence. The investigation should include a prompt, thorough and impartial response; taking evidence from witnesses; listening to both the alleged harasser and the complainant’s version of events; a timescale for resolving the problem; and confidentiality in the majority of cases. Employers must allow the worker to be accompanied by a work colleague or a trade union representative at a grievance meeting involving allegations of sexual harassment. Sometimes it can help to allow the worker to be accompanied by a friend or family member but only if the employment contract permits it, or at the discretion of the employer. Employers should always make a record of complaints and investigations. These should include the names of the people involved, dates, the nature and frequency of incidents, action taken, follow-up and monitoring information. Complaints of sexual harassment will usually only be considered at an employment tribunal if the worker makes a claim within three months of when the incident took place. All sensitive information should be treated confidentially and meet the requirements of data protection law (which is changing in May 2018 to include far greater penalties for those caught breaching its terms). 

Taking action Where a complaint is upheld it may be necessary to relocate or transfer one of those involved to another part of the organisation. However, it should not automatically be the complainant who is expected to move, but they should be offered the choice where practical. It’s important to keep in mind that where the perpetrator is transferred, no breach of contract must occur or a claim of constructive unfair dismissal could arise.

Sexual assault and physical threats Some types of sexual harassment, such as sexual assault and other physical threats, are a criminal matter as well as an employment matter. If it is considered a criminal matter it should be reported to the police via 999 if someone else is in immediate danger, or if the crime is in progress, 101 if the crime is not an emergency. If a complaint is reported to police, or criminal court proceedings are being pursued, an employer must still investigate the complaint as an employment matter. An employer may then follow its disciplinary procedure, without awaiting the outcome of criminal proceedings, provided this can be done fairly.

Offering support It is likely to be very distressing for a worker to be accused of sexual harassment. While a fair and thorough investigation will need to be carried out, accused workers should also be offered support. The Samaritans are a charity who can provide emotional support to employees, both victim and accused, who are struggling to cope and need somebody to listen to them. They can be found at www.samaritans.org.

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