Christmas comes but once a year, unlike stories of sexual harassment, which have been rife in recent months. The latest scandal to hit the retail sector has arisen from the ‘hugging’ culture allegedly enforced by Ted Baker CEO, Ray Kelvin. The frequency and seriousness of sexual harassment stories in the press is somewhat depressing, but not surprising – I can think back to episodes in my career where I was subjected to questionable behaviour from colleagues and having discussed this with other professional women, it is hard to find someone who hasn’t experienced sexual harassment to a greater or lesser degree during their working life to date. Among the friends and acquaintances with whom I have discussed this issue, no one has told me that they made a formal complaint about being harassed – most of the women I know who were subject to this kind of behaviour dealt with it another way, normally by laughing it off and trying to take steps to avoid the individual concerned – perhaps because complaining in a culture where sexual harassment was tacitly accepted was not appealing and potentially career limiting. However, thanks to the courage of the women who started to speak out and share their stories around the globe (including as part of the #MeToo and Time’s Up movements) standing up to harassment in the workplace is becoming less taboo.
So what does the law say? Harassment based on any characteristic protected by the Equality Act 2010 is unlawful. There are two types of unlawful harassment that have a link to sex – harassment related to sex (which covers sexist jokes, for example) and sexual harassment (which covers anything from sexual jokes through to unwanted touching and even sexual assault). There most be unwanted conduct relevant to a protected characteristic (here, sex) which has the purpose or effect of violating the victim’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment. A tribunal will take into account the perception of the victim, any other relevant circumstances as well as whether it was reasonable for the conduct to have that effect. Harassment can be a one off act and the victim doesn’t need to tell the perpetrator that the conduct is unwanted. An employer can be liable for the acts of its employees (or third parties) but will be able to defend itself if it can show it took all reasonable steps to prevent harassment – for example, by ensuring that all employees are regularly trained on discrimination and harassment.
Thanks to the gradual culture shift in this area, many employers are focussing more keenly on how to prevent harassment in the workplace, and how to deal with allegations appropriately when they arise. However, that does not mean that coming forward with an allegation of harassment is suddenly easy for an employee. The Ted Baker story came to light because of the work of an online platform called Organise, which gave individuals a forum in which to share their story as part of a group – a clear example of safety in numbers. Speaking up about any kind of harassment as an individual is still likely to be a traumatic experience and it is important that employers think about how they can give their management staff the tools to deal with this situation appropriately. It is vital that a victim is treated compassionately, but managers should be careful not to over promise in respect of matters such as anonymity and confidentiality, because it is extremely difficult to investigate an allegation thoroughly without some information being disclosed. It is equally important that an alleged perpetrator is given due process – first, because it is possible that an allegation could be false, and secondly because an unfair process will limit the opportunity to fairly dismiss if the allegation is well founded. Historically, employers may have chosen to brush things under the carpet and quietly settle with an alleged victim of sexual harassment, often with the victim (but not the perpetrator) leaving the business under a settlement agreement rather than investigating and facing some potentially uncomfortable truths, but this is also becoming culturally unacceptable. Employers will need to think very carefully about entering into a settlement agreement with an employee who has alleged sexual harassment where this is done without any investigation of the allegations, particularly if it involves binding the alleged victim with a confidentiality clause, as this, too, is the subject of increasing scrutiny and could cause real reputational damage if it later comes to light.
At this time of year, when socialising with clients and office Christmas parties, which often involve copious quantities of alcohol and as a consequence, lower inhibitions, it is particularly important that employers think about whether they are properly equipped to deal with allegations of sexual harassment. Are your policies up to date? Are your staff appropriately trained? Are your management team equipped to deal with this kind of issue (and do they know how to behave appropriately themselves?)? If not, it might be a good time to get in touch or an overly Merry Christmas could lead to a rather less Happy New Year…
If you would like to speak to one of the partners at mpm legal about updating your harassment policies, equality training, or how to handle a sensitive employment issue in an appropriate way, please call us on 0118 950 2460.
Sarah Wilder’s comments in the press on the Ted Baker story can be found here