Facing up to harassment in the workplace
A recurring theme of 2017 was the apparently relentless disclosure of inappropriate behaviour on the part of high profile individuals, both in Hollywood and closer to home in Westminster.
The Equality and Human Rights Commission (EHRC) has recently taken steps to highlight the legal responsibilities of employers to take steps to deal with complaints of harassment and put in place measures to prevent such incidents from happening in the future. The EHRC has warned that it will exercise its enforcement powers if it discovers evidence of systematic failings, writes Liz Stevens, Professional Support Lawyer at Birketts LLP.
As the Christmas party season fades into distant memory, what are the appropriate steps for employers to take in response to a complaint of harassment?
If you have received a formal complaint from an employee, this should be promptly and thoroughly investigated by an independent and suitably experienced manager.
Interviews of all witnesses should be properly documented and the complainant kept updated with progress in the investigation. If there is found to be any substance to the allegations, disciplinary action should follow. Dismissal is often (but not necessarily) the appropriate sanction.
In some cases, it might be appropriate to suspend the alleged harasser while the investigation is conducted, but it will depend on the nature of the allegations and whether those involved work in close proximity.
Suspension should only result from careful consideration of the circumstances.
If an employee is unwilling to make a formal complaint and refuses to cooperate with the process, it might still be advisable for the employer to pursue an investigation. This is particularly the case if the allegations are very serious, or there is any suggestion that such behaviour is endemic within the workplace. Having the right person conducting the investigation and providing reassurances that a complaint will be taken seriously is often sufficient to encourage cooperation.
All those involved in the process should be reminded of the need to keep the nature and the details of the complaint confidential and informed that a failure to do so might result in disciplinary action being taken. Care should be taken that all communications and documents compiled during the investigation are kept properly secure.
It is important to remember that it is not just the act of harassment that gives rise to potential liability on the part of the employer. Employees who are subjected to any detriment (disadvantage) following their involvement in a complaint of harassment, whether making a complaint or giving evidence in support, may choose to pursue a victimisation claim.
There is a statutory defence available to employers provided they can demonstrate that they have taken ‘all reasonable steps’ to prevent harassment from occurring, meaning they are not liable for an individual employee’s unlawful acts.
To assist in establishing this defence, employers should ensure that they have robust policies in place, supported by managers and followed consistently in practice.
A comprehensive bullying and harassment policy should remind employees of the conduct expected of them, both in the workplace and at any functions/events held outside the workplace that will be deemed an extension of the workplace. It should also explain the process for making complaints.
Regular training of all employees, to reinforce the policy and make it clear that certain behaviours will not be tolerated, will reduce the incidents of harassment and also assist in establishing the ‘all reasonable steps’ defence.
A zero-tolerance approach to ‘banter’ within the workplace will go a long way to preventing complaints of sexual harassment arising. Contrary to popular belief, defending a claim on the basis that the comments were ‘only banter’, or that the victim was a willing participant, will rarely succeed in front of an employment judge.
• Birketts is running a series of early bird seminars on the topic of sexual harassment; these will be held at various locations throughout February. Book your FREE place via the Birketts website: www.birketts.co.uk/events
You can also call Liz Stevens on 01603 756474 or email her at: liz-stevens [at] birketts.co.uk